WORKPLACE ACCIDENTS
A worker who suffers an injury in the course of their employment in Queensland has two separate rights which may be pursued.
- These are:
The right to claim benefits from WorkCover pursuant to the insurance scheme provided in the Workers compensation legislation; and - A claim for negligence
In some circumstances you may pursue both options, however in many circumstances you can only pursue one option. The interplay of these rights and effect of pursuing one avenue as opposed to another is discussed below.
If you would like to enquire about making a claim please click here and take a few minutes to fill in this form. Will will get back to you within 24 hours.
Claim for Benefits from Workcover
The right to claim Workers Compensation is available without any need to prove fault by any other person. All employers are, or at least should be, insured for workers compensation.
WorkCover is a statutory authority which covers most employees and responds to claims for injured workers.
A worker is an employee who works under a contract or service. It can include contractors who supply no more than labour and hand tools. It will not include:
- Company directors
- Self –employed contractors
- Business Owners
- Commonwealth employees
To be covered under the WorkCover scheme, an injury must be a personal injury arising out of, or in the course of employment, if the employment is a significant contributing factor to the injury.
An injury includes:
- A disease contracted in the course of employment, whether at or away from the place of employment
- Aggravation of a previous injury if employment is a significant factor contributing to the aggravation
- Loss of hearing
- Psychiatric or psychological injury (though this does not include injury caused by reasonable management decisions in relation to the employment).
Benefits
A worker who suffers injuries is entitled to statutory benefits, which include:
- Weekly payments for time off work;
- Payment of medical expenses;
- If there is a permanent impairment, a lump sum payment of compensation.
Lump Sum Compensation
If your injury has stabilised so that you suffer an impairment that is stable and stationary and not likely to improve with further medical or surgical treatment, you will be entitled to lump sum compensation from WorkCover.
WorkCover will arrange for you to be examined by a doctor for the purposes of assessing the degree of your work related injury. Based upon that medical assessment, WorkCover may offer you a lump sum payment. As a result you will receive from Workcover a Notice of Assessment and an Offer of Lump Sum Compensation.
You need to respond to the Notice of Assessment and the Offer of Lump Sum Compensation by indicating on the form whether you agree with the assessment of the percentage of your impairment and whether or not you accept the offer.
Which choice you make can substantially affect your rights. In making your decision you need to consider the interplay between the Workers Compensation Claim and a Damages Claim (discussed below).
Upon responding to the Notice of Assessment and Offer of Lump Sum Compensation, your rights to further benefits from WorkCover will cease. You therefore need to be careful that you do not precipitate such an offer unless you are sure that your injury is stabilised and will not need further treatment.
If you feel your body is not what it used to be, is not what it was like before the accident, you may be suffering permanent impairment.
If you would like to enquire about making a claim please click here and take a few minutes to fill in this form. Will will get back to you within 24 hours.
Review of WorkCover Decisions in Relation to Statutory Claims
You can apply for internal review of a WorkCover decision to reject your application to terminate, suspend or decrease a weekly payment. To do so you apply within twenty-eight (28) days of receiving written notice of the decision.
Q-Comp will then review the decision and give written notice of its review and reasons for the decision.
Also if you disagree with the assessment of your impairment provided in a Notice of Assessment, you can seek a review of the assessment. Q-Comp will then arrange for a Medical Assessment Tribunal to hold a hearing at which 3 doctors will examine you and reconsider the percentage of your impairment.
You have a right to legal representation at a Medical Assessment Tribunal hearing.
Damages Claims
To maintain a claim for damages you must be satisfied that you will be able to establish negligence or fault on the part of your employer.
To succeed in a claim for damages:
- You will need to be able to show that the event which caused your injury should have been foreseen by your employer
- That the employer failed to take reasonable steps to put in place a reasonable system of work to guard workers against the type of injury that occurred; and
- That your injury has been caused by that failure by your employer.
A court may make a finding of contributory negligence if:
- You fail to comply with instructions given by your employer for the health and safety of workers;
- You failed to use protective clothing and equipment provided by your employer;
- You failed to use anything that was provided that was designed to reduce your exposure to risk of injury;
- You inappropriately interfered with or misused something that was designed to reduce your exposure to risk of injury;
- You were under the influence of alcohol or drugs;
- You failed to attend a relevant safety-training course organised by your employer that was conducted during normal hours.
The value or quantum of your claim will be based upon the your degree of injury and losses, which would be assessed under a number of heads of damage. Such assessments can be complicated and will vary from case to case depending upon numerous factors. Due to the nature of such assessments, the result may well be far larger than the amount of lump sum compensation you might receive from Workcover.
Interplay of rights between Workers Compensation Benefits and Litigation for Damages
If you receive a Notice of Assessment and Lump Sum offer which assesses the degree of your work related injury as more than 20%, you can accept the lump sum and sue for damages.
If however the degree of your work related injury is less than 20%, you cannot both accept the lump sum and sue for damages. You must elect to choose one or the other.
In making your choice which elects to proceed only with a claim for damages, you need to be sure that you will succeed in such claim. If you fail in such litigation, you will lose your rights to any further compensation.
From the time of the response to the Notice of Assessment and lump sum offer from WorkCover, your right to further statutory benefits will cease.