Work accident claims
There are two types of WorkCover claims:
- Statutory claim; and
- Common law claim.
WorkCover statutory claims in Queensland is a no fault scheme. Essentially, if you are a ‘worker’ and you are injured in the course of your employment, you will have entitlement to statutory benefits including wages, medical treatment and rehabilitation expenses.
Your entitlement to such benefits comes to an end at the point that you reach ‘maximum medical improvement’.
At the point that your statutory claim is finalising, you have an entitlement to have WorkCover arrange for an assessment of your injury, where you will attend a medical examination, and be issued a Notice of Assessment. The Notice of Assessment will detail any impairment you may have been assessed as sustaining due to the injury and make you an offer of lump sum compensation.
At the point that you receive a Notice of Assessment, it is imperative that you seek legal advice to discuss your options. Decisions are required to be made which have serious impacts upon your legal rights.
Common Law Claim
After receiving a Notice of Assessment from WorkCover, one of the decisions you will need to make is whether you wish to pursue a common law claim.
To succeed in a common law claim, you will need to not only prove that your injury occurred in the course of your employment, but also that your injury occurred as a result of negligence on the part of your employer or a fellow employee.
A finding of negligence is dependant upon a finding that:
- You were owed a duty of care;
- That duty of care has been breached; and
- As a result of the breach of duty you have sustained injury.
If you are able to establish those elements, you will be entitled to an award of common law damages subject to restrictions under statute. Such damages include amounts for Pain and Suffering, Past and Future Loss of Income, Past and Future Out of Pocket Expenses and Past and Future Needs for Paid Care and Assistance.
Tell us your story.
How can Crew Legal help?
We provide a first consultation completely free and with no obligation. If the claim is undertaken, we will proceed with such claims on a ‘No Win/No Fee’ basis.
A person defined as a ‘worker’ under the Workers’ Compensation and Rehabilitation Act 2003.
A statutory claim must be lodged within six (6) months of the date of injury failing which it is simply at WorkCover’s discretion whether a claim is accepted after that date. However, to ensure full benefits are received from the date of injury onwards, a statutory claim should be lodged within six (6) weeks of the date of injury or benefits are only paid from the date of lodgement onwards.
Common law claims
The legislation sets out that any person injured in a workplace accident must serve a Notice of Claim for Damages within three (3) years of the date of injury. However, your entitlement to lodge a Notice of Claim for Damages is dependant upon you having received a Notice of Assessment from WorkCover for your injury or otherwise meeting eligibility criteria.
If your workplace accident occurred more than three (3) years ago and you have taken no steps to protect your rights, you may not have any entitlement to bring a claim.
It is very important to speak to a lawyer as soon as possible after any accident to ensure your rights are protected.
If a WorkCover statutory claim is lodged within the time periods outlined above and accepted by WorkCover, they will fund reasonable and appropriate treatment to the point that your injury reaches a stage of maximum medical improvement or you no longer have a work related impairment.
Every claim is different and assessed on its own merits. An advice can only be given about how much compensation you are entitled to once all evidence (including income and medical evidence) has been obtained.
Not necessarily. Only a very small portion of claims are decided by a Court. In most cases, claims are resolved either by way of a compulsory settlement conference or mediation.
In only very limited circumstances are WorkCover liable to pay legal costs in addition to damages. Such cases are limited to catastrophic injury claims and those claims where a Notice of Assessment issued and impairment is assessed at 20% or higher.
Every case is different. Generally, statutory claims may run from anywhere between one (1) month and two (2) years. Common law claims generally finalise between nine (9) and 18 months.
It is important not to settle your claim too early. We need to make sure we have all obtained all necessary evidence to ensure the best possible result for you.