A.        INTRODUCTION

This section deals with workers compensation law in the state of Queensland.  Each state has a slightly different system.  Every employer must have workers’ compensation insurance or have approval in certain circumstances to being self insured. Most employers insure with WorkCover Queensland, while a small number of large organisations have their own insurance.  This insurance coverage ensures that employees injured at work receive financial support.  WorkCover Queensland provides insurance coverage for approximately 137,000 Queensland employers, compensating and helping their workers with work-related injuries.  This section of the paper provides an overview of workers’ compensation in Queensland for employers and covers information about insurance, and statutory and common law claims.

B.        WORKERS COMPENSATION INSURANCE

All employers of workers in Queensland are required to have a policy with WorkCover according to the Workers’ Compensation and Rehabilitation Act 2003 (the Act).  An employer is legally required to insure with WorkCover against the cost of compensating a worker who has a work-related injury.  Payment of the WorkCover premium by the due date ensures an employer’s liability is covered.  The policy will cover the employer for any workers employed from the date WorkCover processes the application until the end of the financial year.  The policy is renewed on a financial year basis.  You do not need a WorkCover policy if you do not employ workers.

The WorkCover Accident Insurance Policy insures the employer for the work-related injuries of its workers.  It does not cover company directors or trustees of the business.  Under section 11 of the Act, a worker must be an individual.  Therefore, if you engage a corporation or trust they will not be considered workers.  Unlike companies and trusts, the law may regard partners as individuals.  You need to cover your workers under your WorkCover Queensland policy if it is determined that their employment is ‘connected’ with Queensland.  If you engage interstate or overseas workers to work in Queensland, or if you engage Queensland workers to work interstate or overseas, it is important that you contact WorkCover Queensland to ensure that you are appropriately insured.  If you are sending a worker interstate, you should confirm your insurance obligations with the workers’ compensation authorities in all the jurisdictions in which you employ.

Your policy covers you for costs associated with a statutory claim made by an injured worker.  If WorkCover accepts a worker’s application for compensation, they will be eligible for benefits.  You must pay the worker for the day they stopped work and for each claim you need to pay an excess.  WorkCover also acts on your behalf if the injured worker makes a common law claim.  From 1 July 2005, the maximum excess will be set at $500 or the weekly compensation rate minus $1, whichever is less.  WorkCover will advise employers about the excess payable on each claim.  

If you do not have a policy and you employ a worker, you need to apply for a policy.  You need to take out a WorkCover Accident Insurance Policy within five business days of commencing to employ.  If you do not take out a policy within this timeframe, penalties may apply.  

If you already have a policy for your business, WorkCover will send you a Declaration of Wages form in June each year.  On this form you fill out the details about the wages you pay your workers.  WorkCover uses this information to calculate your premium on an experience based rating (EBR) formula.  WorkCover will send you a Premium Renewal Notice which advises your premium amount due.  The earliest due date of this premium is 30 September each year.  WorkCover policies do not automatically lapse if you do not return your Declaration of Wages form or pay your premium.  You must advise WorkCover in writing if you wish to cancel your policy, providing the date you last employed a worker and your final wage details.

WorkCover calculates your premium by multiplying the wages you declare by your premium rate, which is derived through the EBR formula.  WorkCover calculates your premium for the next insuring year by multiplying your estimated wages for the next year by your premium rate.  If you are a business that has just started employing, the premium rate you pay is the WorkCover industry rate for your particular industry.  This is because you do not have enough claims experience to use in the EBR formula.  If your policy is less than 18 months old or you have no claims experience, your premium rate is only affected by any change to the WorkCover industry rates.  After eighteen months, the premium rate is calculated using the EBR formula. This means that your individual claims experience is taken into consideration.

There are a number of ways an employer can manage its premium.  Good injury prevention is the best way to manage premium costs.  You can help manage your premium by:

• sending your Employer’s Report form within eight business days—delays in lodging documents may impact on a claim’s cost;
• providing injured workers with appropriate and timely rehabilitation (WorkCover will help you with this); 
• only disputing claims you have a genuine concern about; and 
• focusing on injury preventative measures. 

C.        STATUTORY CLAIMS

In general, a worker can apply for compensation regardless of who or what caused the work-related injury —this is called a statutory claim.  If a worker applies for compensation, an employer needs to:

• send an Employer’s Report form to WorkCover within eight business days of learning of the injury;
• pay the injured worker for the day of the injury; and 
• pay the employer excess if we accept the claim (unless you have insured against this). 

WorkCover can now apply penalties to an employer who pays their own claims.  

An application for workers compensation should be lodged within six months of the injury occurring.  Each application is assessed against criteria set out in the Act, including:

• whether the person is a ‘worker’;
• whether the person suffered an ‘injury’; 
• whether the person’s employment was a significant contributing factor to their injury. 

    

To help WorkCover reach a decision, it may wish to talk to you, the injured worker, people who witnessed the injury or the injured worker’s treating doctor.  WorkCover will contact the person nominated on your Employer’s Report form and the injured worker as soon as a decision is made.  WorkCover decides most claims in two weeks, however complex claims may take longer.  Some applications can take up to three months to assess.  You may want to talk to your employee about leave options such as sick leave or annual leave to help relieve any financial distress they may be feeling during this time.

If WorkCover accepts a worker’s application and they need rehabilitation, a WorkCover case manager will work with the injured worker, their treating doctor and you or your rehabilitation coordinator to achieve a timely and safe return to work.  Workplaces with more than 30 workers must have a rehabilitation coordinator.  

Under workers’ compensation legislation an employer has certain responsibilities relating to statutory claims, including: 

• making sure information provided by the employer is true, accurate and not misleading; 
• taking every reasonable step to help with a worker’s rehabilitation while they are receiving compensation;
• letting WorkCover know if you arrange any suitable duties or reduced hours with the injured worker.   

It is important to understand that penalties may apply if an employer does not fulfil its obligations. 

An employer should note the following points: 

• An employer should make sure all the questions are answered and provide enough information on the Employer’s Report form as a decision on a claim will be delayed if WorkCover does not have all the information needed;

• An employer should encourage workers to provide a copy of their application form to help the employer complete the Employer’s Report form;

• An employer should provide every opportunity for workers to return to work after their injury.  This has many benefits and can help to reduce the risk of common law claims;

• An employer should encourage employees to approach your First Aid Officer or Rehabilitation Coordinator as soon as possible after the injury happens; 

• An employer should make sure it reads the information provided on the Employer’s Report before signing it;

• Remember that Employer’s Report forms may be released under Freedom of Information legislation;

• Only disagree with claims you have a genuine concern about.  Unnecessary investigation can lead to longer duration claims and therefore increased claim costs;

• Keep in touch with your worker.  Find out if there are any work tasks they won’t be able to do and start to think about suitable duties if necessary.  On-the-job rehabilitation is the best way to get an employee back to work, safely and quickly;

• Maintain normal job security for your employee as long as possible. 

If you disagree with a decision WorkCover makes, you can discuss the matter with WorkCover.  You should contact the person responsible for the decision to discuss your concerns.  If you are still not satisfied with a WorkCover decision, you have a right to request that the decision be reviewed by Q-COMP. If you do not agree with Q-COMP’s review decision, you can appeal to the Industrial Magistrate to review Q-COMP’s decision. If you do not agree with the Industrial Magistrate’s decision, you have the right of appeal to the Industrial Court.

Workers’ compensation covers a wide range of injuries. While the most common injuries are sprains, strains and cuts, work-related injuries also include:  

• hearing loss (industrial deafness);  

• aggravation to pre-existing injuries (WorkCover only covers the aggravation and not the pre-existing condition itself);  

• diseases (e.g. Q-Fever);  

• psychological/psychiatric injuries (conditions such as depression or anxiety);  

• fatal work-related injuries.  

Even if the injury didn’t happen in the workplace, it may still be covered if it happened:  

• on a work break;  

• while working away from their worksite (or travelling between worksites);  

• while working interstate or overseas; 

• travelling between work and home e.g. on the way to or from work (this is called a journey claim.  These claims do not directly affect your insurance premium).

If WorkCover accepts the application, the worker will receive compensation benefits and start rehabilitation, if needed.  Depending on their injury, these benefits may include:

• weekly compensation payments; 

• medical treatments costs (e.g. doctor, physiotherapy); 

• hospitalisation costs; 

• travelling expenses; 

• rehabilitation costs; and 

• lump sum compensation for any permanent impairment. 

Workers receive compensation in the form of a stepped percentage of their base pre application wages.  Practically, statutory compensation is normally paid for 12 months before a worker is referred to a Medical Assessment Tribunal for an assessment of their residual impairment.  Depending on the percentage impairment assessed by the MAT, a worker will be offered a lump some statutory compensation payment to finalise their statutory claim.  Depending on the percentage assessment, the worker may have to make an election whether to accept the lump sum statutory compensation payment or pursue a common law claim against their employer.

D.        COMMON LAW CLAIMS

If an injured worker can prove that their injury was a result of their employer’s breach of statutory duty, breach of contract or negligence, they may be able to make a common law claim.  Workers can only make a common law claim if they follow processes set out in the Act.  Most claims are resolved outside the court system following negotiations between the injured worker, their employer and WorkCover.  If after an accident occurs, the injured worker and/or their solicitor approach you for an inspection of the accident scene and/or wage records, please contact WorkCover on 1300 362 128 or your solicitor for advice before providing access to the scene or information.

Generally, when we speak of “common law” we are referring to judge-made law.  When we speak of “common law damages” we are referring to judge-awarded damages.  In making their decisions, judges must apply the “statute law” (eg. legislation such as the WorkCover Queensland Act 1996, Workers’ Compensation and Rehabilitation Act 2003 and the Workplace Health & Safety Act 1995) as well as the “common law” (ie. previous decisions from higher courts).

In Queensland, injured workers generally have two avenues for compensation.  The first is statutory “no fault” compensation (considered above).  A person is entitled to compensation if injured at work or in the course of certain defined journeys in connection with that work, irrespective of “fault”.  Statutory compensation covers hospital, medical and rehabilitation expenses, the replacement of lost wages and, in some cases, lump sum compensation for permanent disability and care or assistance costs.  Statutory compensation payments are finite and do not usually continue after the injured worker’s condition becomes “stable and stationary”.

The second avenue is common law damages.  An injured worker usually seeks common law damages when the worker believes that the statutory compensation is inadequate and that the employer is legally liable for the injury.  In most cases, the injured worker must choose between a lump sum payment for permanent disability and a claim for common law damages.  Unlike statutory compensation, an injured worker is only entitled to recover common law damages if the court finds that the employer was legally liable for the injury.  This can be through negligence, breach of contract or breach of statute.  An employer is considered negligent if there has been a breach of the “duty of care” owed to workers.  A breach of duty of care is usually found in cases where the employer has failed to provide a safe system of work.  Common law damages are generally substantially larger than statutory compensation but the injured worker must approve “fault” on the part of the employer.  Court proceedings for common law claims must be commenced within three years of the injury occurring.

In order to found an action for personal injuries in negligence, a plaintiff must establish the following elements: 

• the existence of a duty of care; 

• breach of the duty; 

• damage was occasioned by the breach (causation); and 

• that the damage was foreseeable and not too remote. 

The onus of proof of causation rests with the plaintiff to prove, on the balance of probabilities, that the loss or injury was caused or materially contributed to by the defendant’s wrongful act.  A plaintiff need only prove that the defendant’s actions were a cause, not necessarily the sole cause, of injury or damage.

The common law of Queensland recognises a duty of care on the part of employers towards their employees.  A court action can be commenced against employers breaching their duty of care with negligence as the basis for the action.  The duty has received varying judicial expression but it is essentially “a duty of care . . . to provide adequate plant and equipment, a safe place of work and a safe system of work for . . . employees”.

The plaintiff must prove that the defendant’s negligence was a material cause of the injury.  The employer’s breach of duty in this case can be characterised as a failure to provide a safe system of work.  The question of whether the defendant/employer has breached a duty of care involves a consideration of:

• the magnitude of foreseeable risk; 

• the probability of the occurrence of the risk; and 

• the expense, difficulty and inconvenience in taking alleviating action. 

In a claim based upon negligently inflicted psychiatric damage, the following issues must be considered:

• the plaintiff must have suffered a recognisable psychiatric illness; 

• it is assumed that the plaintiff is a person of reasonable fortitude; and 

• the difficulty will often be in pointing to precisely what warning or instruction ought to have been given, especially for employees experienced, hardened by training or experience or operating in a position which, by its very nature, would involve a heavy and stressful workload. 

The workers compensation legislation has been amended in recent years to strengthen workers’ obligations for their own safety in employment.  Queensland remains one of the few states where employees enjoy unrestricted common law rights.  However, there are election provisions which apply to workers who suffer work-related impairment of less than 20%.  Workers who receive a final assessment from WorkCover of more than 20% work related impairment retain their full rights.  Where a worker receives an assessment of work related impairment of less than 20%, it is necessary for the worker to elect whether to accept payment of a sum of money calculated according to statutory tables or pursue a claim for common law damages.

There are six main steps in the common law process: 

Step 1. Assessment of injuries 

WorkCover arranges for the worker’s injuries to be assessed (normally through the statutory claim process). 

Step 2. Notice of Claim for Damages 

The injured worker must serve WorkCover and the employer with a notice that sets out personal particulars, the circumstances and consequences of the injury and why the employer is considered to be liable for the injury. The injured worker must also make an offer to settle the claim.  A person from WorkCover’s Common Law Division will then be appointed to manage the claim.  Others who may be involved in the management of the claim include a factual investigator and a lawyer, appointed by WorkCover.

WorkCover will contact the employer’s representative to discuss the claim and will arrange for any necessary investigations to be carried out and for all relevant documents to be collated.  Employers should volunteer any useful or relevant information to WorkCover and its representatives.  This ensures that the matter is fully investigated and, if appropriate, defended.  If an investigation report is obtained, it will assist WorkCover to determine issues relating to:

      (a) Liability: Whether a court is likely to hold the employer liable and, if so, to what to extent; and 

      (b) Quantum: The likely damages the court will award. 

Further investigations and medical examinations may be carried out to ensure that any settlement or judgment is fair and reasonable.  At this point, the lawyer may wish to obtain further information from the employer and will either make direct contact or make a request through the investigators.

Step 3. WorkCover’s response to the claim 

Once the claim has been investigated, WorkCover must advise the injured worker whether WorkCover admits liability and, if so, to what extent and how much WorkCover is prepared to offer to settle the claim.

Step 4. The compulsory conference 

If WorkCover’s response does not result in a settlement of the claim, a conference must be held within three months. The employer will be invited to attend the conference.  The conference will usually be attended by:

• the employer; 

• the injured worker; 

• the injured worker’s lawyer; 

• WorkCover’s case manager; and 

• WorkCover’s lawyer. 

In some cases, a mediator will also attend to help facilitate a resolution.  The conference allows the parties to discuss their differences and hopefully resolve the claim.  Most matters settle at the compulsory conference stage, which means significant costs savings for all parties.

Step 5. Court proceedings 

If the matter cannot be settled at the compulsory conference, the injured worker may take legal proceedings in the courts.  To commence legal proceedings, the injured worker will serve the employer with a Claim and Statement of Claim. The employer should inform WorkCover as soon as this occurs.  After certain procedural steps and assuming the matter does not resolve, there will be a trial.

Step 6. Trial 

Employers are invited to attend trials.  Trials may concentrate on liability and/or quantum issues.  Employers, their representatives and witnesses may also be required to give evidence. Experts (eg. engineers and doctors) may also be called to give evidence.  After all the evidence has been heard, the judge will hand down a decision. The decision is binding for both parties, unless appealed.

In actions for personal injuries, damages are awarded to the successful plaintiff by the payment of a sum of money to compensate for the injuries so caused.  There are three relevant principles:

• The fundamental aim of the compensatory principle is to put the party affected as nearly as possible in the position they would have been in had the injury not occurred; 

• Damages for one cause of action must be recovered once and forever and (in the absence of statutory exceptions) must be awarded as one lump sum; and 

• The court has no concern with the manner in which the plaintiff uses the sum awarded. 

At common law, the primary elements which are to be considered in assessing an award of damages are: 

• general damages consisting of pain and suffering and loss of amenities or enjoyment of life; 

• special damages comprising out of pocket expenses for medical treatment and the like; 

• economic loss, past and future; and 

• compensation for the provision of gratuitous care services by members of your family; and 

• interest on the above elements. 

Significant restrictions have been placed upon the availability of compensation for gratuitous assistance of the kind normally provided by family members.  Further, damages to persons other than the claimant, including claims for loss of consortium, have been excluded.  The legislation also places restrictions on the recovery of damages for future economic loss.  The legislation also restricts the interest that may be awarded on damages.  Interest is now limited to paid special damages and actual past economic loss after reducing the amount of compensation paid.  The amount of damages that an employer is legally liable to pay to a claimant for an injury must be reduced by the total amount paid by WorkCover by way of compensation under the statutory scheme.  The common law duty of mitigation of loss applies to a worker who has sustained an injury and is required to participate in rehabilitation.  The onus of proving that all reasonable steps to mitigate damages have been taken lies on the plaintiff.  

The following is a list of the heads of damages seen from time to time in personal injuries actions although it is not exhaustive: 

• Past out of pocket expenses; 

• Refunds to Medicare; 

• Refunds to WorkCover for hospital, medical and other <font face="Arial, sans-serif; font-size: 12pt;">expenses; 

• Refunds to private insurers; 

• Travelling expenses; 

• Past pharmaceutical costs; 

• The “top up” between public and private health fund rebates and actual costs; 

• Physiotherapy costs; 

• Future surgical, physiotherapy and/or pharmaceutical costs; 

• Past and future paid domestic or other assistance; 

• Past and future economic loss; 

• Future loss of opportunity; 

• Loss of superannuation benefits; and 

• General damages.