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.
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. A worker may be able to proceed straight to a common law claim but this should not be done without advice. 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 apply penalties to an employer who pays their own claims.
An application for workers compensation must be lodged within six months of the injury occurring. If the injury is sustained over time, it can be lodged within 6 months of seeing a doctor in relation to the injury. This time can only be waived in a very narrow range of circumstances. 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 (and not caused by reasonable management action taken in a reasonable way).
To help WorkCover reach a decision, you will need to provide evidence of the injury and its cause including from people who witnessed the injury and your treating doctor. WorkCover will write to you as soon as a decision is made. WorkCover decides most claims in twenty business days, 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 personal leave or annual leave or income protection (if available) 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.
If you are not satisfied with a WorkCover decision, you have a right to request written reasons within 20 business days of being advised of the decision. You then have 3 months from receiving the written decision to apply for a review by the Workers Compensation Regulator. This is a paper based review and you can provide further information if it is available. If you do not agree with the Regulator’s review decision, you can appeal to the Queensland Industrial Relations Commission which will conduct a hearing. If you do not agree with the decision of the Queensland Industrial Relations Commission, you have the right of appeal to the Industrial Court but only in a narrow range of circumstances.
Workers’ compensation covers a wide range of injuries including psychological/psychiatric injuries (conditions such as depression or anxiety).
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. Psychological Injury Claims
Psychological or “stress” claims are just as much a workplace injury as a broken leg. However, the evidence is not always so clear. The primary issue of dispute in a stress related claim is usually whether the injury resulted from reasonable management action taken in a reasonable way. Claims are often rejected where they are not specific enough or the unreasonableness of the management action is not clear. Remember that management action does not have to be perfect to be reasonable. Detail and preparation at the time of lodging the claim are the keys to success. Employees should note:
WorkCover will not investigate the facts and circumstances of the claim. It is up to you to provide evidence. The employer will be allowed to respond to the claim with their own evidence (to which you can respond) but WorkCover will not actively speak to witnesses themselves.
You should provide full details of individual incidents which have caused your medical condition. If this is not possible, do the best you can because a general assertion of bullying activity is insufficient. Use the When, Where, Who, What Rule – when did it happen, where did it happen, who was there and what happened – what was said or done or what occurred. Be as specific as possible. This may be distressing but is necessary. Get help if you need it.
You can ask fellow workers to provide statements and employers should not try to stop you. Of course, co workers are under no obligation to help and there is a line where a request becomes harassing behaviour. The unfortunate reality is that most current employees will not want to get involved. Ex employees are usually able to be more helpful.
Make sure you separate what is just background from the facts of the bullying incidents which caused the injury.
Highlight the unreasonable nature of the management action if this is an issue. This could be how something is said or the tone and timing of emails or the failure to conduct a timely or appropriate investigation of a complaint. For unreasonable performance demands, compare the performance requirements with those contained in a position description or note the unreasonable time demands or volumes required. Note any failure by the employer to follow their own policies.
It is important for your claim to be easily readable and understood. Set out incidents in a chronological history or grouped under types of behaviour with the most serious first. Make sure your statement of facts is easy to read with headings, sub headings, paragraphing, and page numbering.
D. 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. It is important to remember that you only have 3 years from the date of injury to commence this 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 Workers’ Compensation and Rehabilitation Act 2003) 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.
If your statutory claim has been accepted, then you should seek advice from a specialist personal injury law firm about whether you should commence a common law negligence claim.