In Queensland each year, on average, 90,000 – 95,000 new statutory claims are lodged with WorkCover Queensland.
The law of averages would indicate that a worker in Queensland is likely to face the situation of injury at least once in their working life.
That being that case, let’s have a look at what is involved.
Abby is a university student working at a local tavern in Brisbane on weekends. Upon starting her shift one Saturday, she was instructed by her manager to change over one of the kegs which was empty. To do so, Abby had to move a standard keg of beer weighing 40kg 5 metres from the place where it was stored to where it needed to be connected to the tap line. She wasn’t given any assistance to move the keg and was required to do so by herself. In the process of moving the keg, she injured her lower back. The pain from her injury was such that she was not able to complete her shift and needed to go home early.
What should Abby do next?
In Queensland, injured workers’ rights to compensation falls within the Worker’s Compensation and Rehabilitation Act 2003, the WorkCover scheme in Queensland.
There are 2 types of WorkCover claims:
- Statutory Claim; and
- Common Law Claim.
Statutory claims are no fault claims in that, to be entitled to statutory compensation, the worker does not need to prove that it was the employer’s fault that the injury occurred. Rather, the worker simply needs to establish that:
- They are a “worker”;
- They have sustained an “injury”; and
- Their work is a significant contributing factor to the injury.
Importantly, there is a time period within which an application for statutory compensation must be lodged. An application for compensation for an injury is valid and enforceable only if the application is lodged within 6 months after the entitlement to compensation for the injury arises (see section 131).
The first important step to take upon suffering an injury at work is to seek medical treatment. Abby should see her General Practitioner or Hospital immediately for initial treatment. When doing so, she should request from the doctor or hospital a WorkCover Queensland Work Capacity Certificate (Medical Certificate). It is commonly the case that following completion of the Work Capacity Certificate, the document is submitted directly with WorkCover Queensland by the doctor/hospital. In the event that that does not occur, Abby is able to lodge a medical certificate via WorkCover’s online portal at www.worksafe.qld.gov.au
Upon receipt of the Work Capacity Certificate, WorkCover Queensland will consider the matter and determine whether Abby falls within the 3 criteria listed above for acceptance into the WorkCover scheme.
Assuming that WorkCover Queensland accept the claim as a valid claim, Abby is then entitled to receive payment of statutory benefits from WorkCover Queensland which include amounts for wages (whilst unfit for work), medical and rehabilitation treatment, needs for paid care and assistance etc.
An injured workers’ entitlement to such benefit is until such time as either they recover fully from their injuries and are no longer incapacitated for work or their injuries reach a stage of “maximum medical improvement”.
What to do when WorkCover Queensland want to close the statutory claim.
At the conclusion of a workers’ statutory claim, Abby is entitled to ask for an assessment of her injury to determine whether she is entitled to an offer of lump sum compensation.
Essentially, if the injury has caused a permanent impairment, Abby is entitled to receive an offer of a lump sum amount of compensation that is directly related to the level of percentage impairment her injury has caused. For instance, 0% = $0.00, 1% = $3,478.55 and so on.
On many occasions, WorkCover Queensland will simply notify an injured worker that they are closing the statutory claim file without an arranging an assessment of the injury. Should that occur, Abby should request that her injury is assessed even if she considers she has fully recovered from her injury.
The process of assessing the injury involves WorkCover arranging a medical appointment with an independent medical assessor to examine the worker and an assessment report completed.
Once the injury has been assessed, WorkCover Queensland will issue a Notice of Assessment which sets out the details of the impairment assessed and any offer of compensation. Upon receipt of the Notice of Assessment, Abby has an irrevocable decision to make:
- If the impairment is assessed at less than 20%, Abby must decide whether to accept the statutory offer or reject it and pursue a common law damages claim;
- If the impairment is assessed at greater than 20%, Abby is entitled to both accept the lump sum offer and pursue a claim for common law damages; or
- If Abby wishes to dispute the level of impairment assessed, there is a process by which she can dispute the impairment and request to be assessed by an alternative Doctor or the Medical Assessment Tribunal. She would then receive a new Notice of Assessment after that to consider.
Common Law Claim
The second type of WorkCover claim is a common law claim. At the conclusion of the statutory claim or if a statutory claim was never lodged, an injured worker can consider pursuing a common law damages claim to recover “full compensation” for their injuries.
A common law damages claim is different to a statutory claim in that it requires the added element of establishing not just that the injury occurred at work, but also that it occurred as a result of the negligence of the employer or a fellow employee.
A finding of negligence is dependent upon a finding that:
- The worker was owed a duty of care;
- That duty of care has been breached; and
- As a result of the breach of duty, the worker sustained the injury.
It is important to note that an employer owes a very high duty of care to safeguard their employees against foreseeable risks of injury. Whilst it is not an absolute duty of care, there is a very high bar set for steps that an employer must take to reasonably safeguard their workers from injury.
In Abby’s case example, asking a young female employee to shift a 40kg keg unassisted will very likely be found to be a breach of the duty of care owed by the employer.
If a breach of duty is able to be established as against the employer Abby will be entitled to common law damages. Such damages include amounts for pain and suffering, past and future loss of income, past and future needs for care and assistance and past and future out of pocket expenses.
The common law damages able to be recovered in such claims usually far exceeds the amount of the statutory offer contained within the initial Notice of Assessment. It is for this reason that it is imperative that Abby seeks advice from a suitably qualified lawyer at the conclusion of her statutory claim.
It is important to note that there is a limitation period that applies to the pursuit of a common law damages claim in Queensland. That limitation period is a period of 3 years from the date on which the injury occurred. Abby must have commenced a common law damages claim by the service of a compliant Notice of Claim for Damages within 3 years of the date of the injury or her rights to pursue the common law claim may be lost and extinguished.
If injured at work, it is important that you:
- Immediately see your General Practitioner or Hospital for treatment;
- Obtain a Work Capacity Certificate (Medical Certificate) and ensure that it is lodged with WorkCover Queensland either directly by the Doctor/Hospital or by yourself online;
- The Work Capacity Certificate should be lodged within 28 days of the initial injury but certainly within 6 months or the right to statutory claim is lost.
- At the conclusion of a WorkCover Statutory Claim, the injured worker should request WorkCover Queensland arrange an assessment of their injury if WorkCover does not do so for them;
- Upon receipt of a Notice of Assessment, it is imperative that the injured worker seek legal advice to determine their potential rights to pursue a common law damages claim.
- The common law damages claim must be pursued within 3 years of the date of the injury or the right to pursue the claim might be lost and extinguished.
The lawyers at Crew Legal have extensive experience in protecting injured workers’ rights in Queensland.
Please contact Crew Legal for a cost and obligation free initial appointment to discuss your rights.