A. INTRODUCTION

Every Queensland employer must have workers’ compensation insurance. 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.

B. 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 and pay the injured worker for the day of the injury.

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, your employer, people who witnessed the injury or your treating doctor. WorkCover will write to you as soon as a decision is made. WorkCover decides most claims in two weeks, however complex claims may take longer and some applications can take up to three months or longer to assess. You may need to consider leave options such as sick leave or annual leave to help relieve any financial distress you may suffer during this time.

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

If you are 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 but only in a narrow range of circumstances.

• 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 your usual 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.

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

• weekly compensation payments;

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

• hospitalisation costs;

• travelling expenses;

• rehabilitation costs; and

• an offer of lump sum statutory 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, you may have to make an election whether to accept the lump sum statutory compensation payment or pursue a common law claim against your employer.

C. COMMON LAW CLAIMS

If you can prove that your injury was a result of your employer’s breach of statutory duty, breach of contract or negligence, you may be able to make a common law claim. You can only make a common law claim if you follow processes set out in the legislation. Most claims are resolved outside the court system following negotiations between you (generally through your solicitor), the employer and WorkCover.

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 the 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 to ensure 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.

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, an 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

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 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.