Overview of Workers Compensation
Workers compensation is a form of insurance payment to employees if they are injured at work or become sick due to their work.
Under Australian law, employers must have insurance to cover their workers in case they get sick or injured because of work.
In Queensland, the dominant insurer for workers is WorkCover Queensland. Some employers who are large enough have applied for a license to be a self-insurer.
If injured at work, an injured worker is entitled to receive financial assistance with respect to the following:-
-
- Weekly benefits (which is like income protection);
- Medical treatment such as funding for GP consultations, medical specialists, surgical costs, hospital fees, psychological therapy, occupational therapy, physiotherapy and really any and all reasonable medical and rehabilitation costs;
- Pharmaceutical costs;
- Travel costs
The role and function of WorkCover Queensland and the self-insurers is governed by legislation which is called the Workers Compensation & Rehabilitation Act 2003 (“the WorkCover legislation”).
The WorkCover legislation also sets out and explains the rights and obligations of injured workers when they have made an application for compensation.
The objects of the WorkCover legislation includes:-
-
- Providing benefits for workers who sustain injury in their employment, for dependents if a worker’s injury results in the workers’ death, for persona other than workers, and for other benefits; and
- Encouraging improved health and safety performance by employers
Some injured workers require assistance from WorkCover for a short period of time regarding a minor injury with those injured workers returning to work promptly or perhaps only requiring assistance for medical expenses only.
For injured workers with major or serious injuries, they might have a lengthy period of time off work and may never be able to return to work. This would involve the injured worker having up to one or two years or even longer on WorkCover and with the assistance of a claims manager from WorkCover until the WorkCover claim ends.
Understanding the Claims Process
It is very important for injured workers to know and understand the claims process.
If you are injured at work there are a few ways that you can commence the claim with WorkCover.
The most typical approach that we see is that an injured worker will attend their GP or a hospital and a medical practitioner will complete a workers compensation medical certificate for the injured worker and this will be sent by facsimile to WorkCover Queensland.
An injured worker can also lodge a claim with WorkCover by telephone or online by contacting WorkCover at www.worksafe.qld.gov.au or on 1300 362 128.
Here is a link to make a claim online with WorkCover
https://ols.workcoverqld.com.au/ols/public/claim/lodgement.wc
WorkCover will then investigate the claim by speaking with the injured worker to understand how the injury or illness occurred. WorkCover will also speak with the employer to check and determine if the claim is one for acceptance. WorkCover requires both factual and medical evidence to support the claim and if WorkCover is satisfied that the claim should be accepted, WorkCover will then make a decision to accept or reject the claim and notify the injured worker and the employer.
If the injured worker’s claim is rejected, the injured worker has the right to appeal the decision which is usually to the Workers Compensation Regulator and the appeal needs to be lodged within three months of the decision.
If the injured worker’s claim is accepted and the employer wants to appeal the decision it can do so and it has the same time period to appeal the decision.
When does my claim with WorkCover end?
A claim with WorkCover for workers compensation will end when the injured worker is able to return to work or when their injury has reached maximum medical improvement. Sometimes both events will occur at or about the same time.
For some injured workers, they will not be able to return to work and at the end of the WorkCover claim, they will receive a Notice of Assessment which will contain an offer of lump sum compensation.
All injured workers are entitled to request a Notice of Assessment and regardless of whether they can return to work or not.
An offer of lump sum compensation is not the same as a settlement of a personal injury claim or a common law claim for damages.
A Notice of Assessment contains a list of any and all injuries sustained, an assessment of any whole person impairment suffered by the injured worker and an offer of lump sum compensation. The offer of lump sum compensation is calculated purely based on the level of whole person impairment.
For example, if an injured worker has sustained a work-related back injury, WorkCover will organize for the injured worker to attend a medical assessment with a doctor on WorkCover’s panel of doctors who will conduct a medical examination and provide a written report to WorkCover. If that doctor gives the opinion that the injured worker has sustained a 5% whole person impairment then WorkCover will calculate what that means in terms of an offer of lump sum compensation. At the present time, the offer would equate to about $19,000.00.
If the offer of lump sum compensation is accepted then the injured worker will not be able to pursue a common law claim for damages. This is a very important point to understand.
If the whole person impairment is 20% or more then the injured worker can accept the offer of lump sum compensation and pursue a common law claim for damages.
This is why it is really important and critical for injured workers to obtain legal advice regarding their rights and options before they make a decision as to whether to accept or reject the offer of lump sum compensation in a Notice of Assessment.
If an injured worker is unhappy with the assessment of impairment by WorkCover’s doctor, the injured worker has the right to request a further medical assessment with a different doctor from WorkCover’s panel. Some doctors are more reasonable or sympathetic than others. A lawyer who is experienced in WorkCover claims will be able to provide guidance as to which doctors are more reasonable than others. An injured workers also has the right to ask for the assessment of impairment to be referred to the Medical Assessment Tribunal (“MAT”) for final determination. There is typically no right of appeal against a decision from the MAT.
It is important to understand that the offers of lump sum compensation do not provide compensation or damages for pain and suffering, past and future loss of income, past and future loss of superannuation and future medical expenses. These components or heads of damage can only be obtained or recovered in a common law claim for damages.
Immediate Steps After Injury
When injured at work or if you become unwell or sick due to work, seek medical attention as soon as possible.
If you believe that your injury or illness is work-related, you should inform your doctor and also your employer as soon as possible.
If your doctor or treating hospital accepts that your injury or illness is work-related then they will typically prepare a workers compensation medical certificate and they will then forward this important document to WorkCover and then the claim will commence.
Who is eligible to claim workers compensation?
To be able to claim workers compensation in Queensland you need to be able to establish that you are a worker, you have sustained an injury and that your work was a significant contributing factor to the injury.
If your spouse or parent has died due to a work-related accident or illness, and you were financially dependent on the deceased worker, you may be able to seek compensation from WorkCover for financial assistance for funeral costs and other financial assistance such a lump-sum or quarterly payments for dependents which can be substantial.
Time Limits – Is there a deadline or cutoff date?
Yes, there is a time limit for lodging claims with WorkCover Queensland. If the claim is not lodged within the time limit, it is possible to submit the claim outside the time limit but you must provide a reasonable excuse for delay.
The time limits are strictly enforced by WorkCover and self-insurers in our experience.
All claims must be lodged within six months of the date of accident/injury or illness or within six months from when you first saw a doctor.
Employer’s Role in the Process
Once a claim has been successfully submitted to WorkCover Queensland, the employer has an obligation to cooperate with WorkCover and to also treat the injured worker reasonably and fairly at all times.
If an injured worker is unable to work, the employer is not permitted to sack or terminate the injured worker’s employment for up to 12 months while the injured worker has a current workers compensation medical certificate. It is important for all injured workers to know and understand their rights about this issue.
The employer is entitled to seek information and updates from the claims manager at WorkCover to see when the injured worker will be able to return to work or commence a return-to-work program.
The employer is also entitled to communicate with the injured worker from time to time to see how they are going and assist the injured worker return to work when possible.
Notice of Assessment – Lump Sum Offers
At the end of the WorkCover claim, an injured worker or WorkCover can arrange for a Notice of Assessment to be issued.
The Notice of Assessment is a very important legal document and we strongly recommend all injured workers to obtain legal advice regarding their rights and options with respect to this document.
We have provided a table below which explains how the whole person impairment assessments converts into offers of lump sum compensation by WorkCover.
| Degree of Impairment | Lump Sum Compensation |
|---|---|
| 1% | $3,805.75 |
| 2% | $7,611.50 |
| 3% | $11,417.25 |
| 4% | $15,223 |
| 5% | $19,028.75 |
| 6% | $22,834.50 |
| 7% | $26,640.25 |
| 8% | $30,446 |
| 9% | $34,251.75 |
| 10% | $38,057.50 |
| 11% | $41,863.25 |
| 12% | $45,669 |
| 13% | $49,474.75 |
| 14% | $53,280.50 |
| 15% | $57,086.25 |
| 16% | $60,892 |
| 17% | $64,697.75 |
| 18% | $68,503.50 |
| 19% | $72,309.25 |
| 20% | $76,115 |
| 21% | $79,920.75 |
| 22% | $83,726.50 |
| 23% | $87,532.25 |
| 24% | $91,338 |
| 25% | $95,143.75 |
| 26% | $98,949.50 |
| 27% | $102,755.25 |
| 28% | $106,561 |
| 29% | $110,366.75 |
| 30% | $114,172.5 + $14,349.71 |
| 31% | $117978.25 + $22,484.14 |
| 32% | $121,784.00 + $30, 618.57 |
| 33% | $125,589.75 +$38,753.01 |
| 34% | $129,395.50+ $46,887.44 |
| 35% | $133,201.25+ $55,039.48 |
| 36% | $137,007.00 + $63,173.92 |
| 37% | $140,812.75 + $71,308.35 |
| 38% | $144,618.5 + $79,442.78 |
| 39% | $148,424.25 + $87,594.83 |
| 40% | $152,230 + $95,729.26 |
| 41% | $156,035.75 + $103,863.69 |
| 42% | $159,841.5 + $111,998.13 |
| 43% | $163,647.25 + $120,132.56 |
| 44% | $167,453.00 + $128, 284.60 |
| 45% | $171,258.75 + $136,419.04 |
| 46% | $175,064.5 + $144,553.47 |
| 47% | $178,870.25 + $152,705.51 |
| 48% | $182,676.00 + $160,839.95 |
| 49% | $186,481.75 + $ 168,974.38 |
| 50% | $190,287.5 + $177,108.81 |
| 51% | $194,093.25 + $185,243.25 |
| 52% | $197,899.00 + $193,377.68 |
| 53% | $201,704.75 + $201,523.72 |
| 54% | $205,510.5 + $209,664.16 |
| 55% | $209,316.25 + $217,798.59 |
| 56% | $213,122 + $225,933.05 |
| 57% | $216,927.75 + $234,085.07 |
| 58% | $220,733.50 + $242,219.50 |
| 59% | $224,539.25 + $250,353.93 |
| 60% | $228,345.00 + $258,505.974 |
| 61% | $232,150.75 + $266,640.41 |
| 62% | $235,956.50 + $274,774.84 |
| 63% | $239,762.25 + $282,909.27 |
| 64% | $243 568.25+ $291,061.32 |
| 65% | $247, 373.75 + $299,195.75 |
| 66% | $251,179.5 + $307,330.19 |
| 67% | $254,985.25 + $315,464.61 |
| 68% | $258,791.00 + $323,616.66 |
| 69% | $262,596.75 + $331,751.09 |
| 70% | $266,402.5 + $339,885.53 |
| 71% | $270,208.25 + $ 348,019.96 |
| 72% | $274,014 + $ 356,154.40 |
| 73% | $277,819.75 + $364,306.44 |
| 74% | $281,625.5 + $372,440.87 |
| 75% | $285,431.25 + $380,575.305 |
| 76% | $289,237.00 + $380,575.305 |
| 77% | $293,042.75 + $380,575.305 |
| 78% | $296,848.5+ $380,575.305 |
| 79% | $300,654.25 +$380,575.305 |
| 80% | $304,460.00+$380,575.305 |
| 81% | $308,265.75 +$380,575.305 |
| 82% | $312,071.5+$380,575.305 |
| 83% | $315,877.25+$380,575.305 |
| 84% | $319,683.00+$380,575.305 |
| 85% | $323,488.75+$380,575.305 |
| 86% | $327,294.50+$380,575.305 |
| 87% | $331,100.25+$380,575.305 |
| 88% | $334,906.00+$380,575.305 |
| 89% | $338,711.75+$380,575.305 |
| 90% | $342,517.50+$380,575.305 |
| 91% | $346,323.25+$380,575.305 |
| 92% | $350,129.00+$380,575.305 |
| 93% | $353,934.75+$380,575.305 |
| 94% | $357,740.50+$380,575.305 |
| 95% | $361,546.25+$380,575.305 |
| 96% | $365,352.00+$380,575.305 |
| 97% | $369,157.75+$380,575.305 |
| 98% | $372,963.50+$380,575.305 |
| 99% | $376,769.25+$380,575.305 |
| 100% | $380,575.00+$380,575.305 |
WorkCover Claim v. Common Law Claim
An injured worker will have the right or option to pursue a common law claim at the end of the WorkCover claim.
A WorkCover or workers compensation claim is a ‘no fault’ claim. In other words, an injured worker does not have to prove negligence or legal fault to be entitled to receive statutory benefits or compensation from WorkCover.
A common law claim for damages allows an injured worker to seek damages or compensation for various components or heads of damage including:-
-
- Pain & Suffering including loss of quality and enjoyment and the amenities of life
- Out of Pocket Expenses
- Past Loss of Income or Wages
- Future Loss of Income or Wages
- Past Loss of Superannuation
- Future Loss of Superannuation
- Future Medical Treatment
To succeed in a common law claim for damages an injured worker needs to be able to establish or prove negligence or liability against the employer which involves proving or demonstrating on the balance of probabilities or 51% or better that the employer:
-
- Owed the injured worker a Duty of Care;
- The employer breached the Duty of Care that was owed to the worker;
- Due to the Breach of Duty of Care, the injured worker has suffered injury, loss and damage
Example:-
Employer requests or directs or requires a worker to lift something weighing 50kg and the worker sustains a back injury which results in the injured worker sustaining a career ending back injury. This worker is highly likely to have a successful common law claim for damages against the employer.
When is a common law claim viable?
A common law claim for damages will typically be a good idea and viable if there is a reasonable or good or strong negligence claim against the employer and if the quantum (or full value) of the claim is big enough to justify pursuing the matter.
For example, if the offer of lump sum compensation by WorkCover is $20,000.00 and the injured worker has a strong negligence claim against the employer and if the damages is likely to be assessed or determined by the court at say $200,000.00 and if the legal costs associated with running the case is say $40,000.00 then pursuing the common law claim is clearly a good idea.
If the negligence claim is risky or not straightforward and the offer of lump sum compensation is $50,000.00 and the likely damages from the common law claim is say $80,000.00 then it might be best for the injured worker to accept the lump sum offer and not pursue the common law claim.
These two examples demonstrate why it is a really good idea to obtain legal advice regarding your rights and options either before or when you receive the Notice of Assessment from WorkCover.
How long does it take to settle a Common Law Claim?
Not all cases settle but most common law claims do settle or resolve prior to trial. At least 98% of all common law claims end up going to trial which is a comforting statistic.
From when the common law claim commences, it usually takes about 6 to 9 months before the claim will proceed to a settlement conference. Many cases settle on that day but some do not.
For the cases that do not settle at the first settlement conference, there is usually a mediation prior to trial which take place about 6 to 9 months after the settlement conference.
Time Limits for the Common Law Claim for Damages
An injured worker must commence the common law claim for damages within three years of the date of accident/injury.
If court proceedings are not commenced within three years of the date of accident/injury, the injured worker’s right to pursue a common law claim for damages will be lost forever.
In some circumstances, an injured worker can seek an extension of the limitation period from the court but the application to extend the limitation period is often contested and there needs to be a compelling and very good reason why the injured person did not commence court proceedings within three years of the date of accident/injury/illness.
Summary of WorkCover Claims Process
If you are injured at work or become unwell or sick due to your workplace, seek medical attention promptly and lodge your claim with WorkCover as soon as possible and within six months.
Once the claim is accepted, you are entitled to receive weekly benefits (replacement wages or income protection), medical treatment and rehabilitation including surgery until you are well enough to return to work if you can return to work.
At the end of the WorkCover claims process you are entitled to seek an offer of lump sum compensation by requesting a Notice of Assessment.
The Notice of Assessment is a very important legal document which has consequences in terms of being able to pursue a common law claim for damages.
Summary of Common Law Claim Process
After the injured worker receives the Notice of Assessment, they can commence the common law claim.
A common law claim for damages must be commenced within three years of the date of accident/injury/illness.
Most common law claim are able to be resolved or settled. The statistics are very strong or positive in terms of settlement or resolution for most claims.
Why vbr Lawyers?
vbr Lawyers was established in 2017 by John Vandeleur, Greg Black and Sean Ryan.
John, Greg & Sean were partners at a large, national personal injury law firm for many years before they decided to establish their own firm and do things differently.
vbr Lawyers is different to many other personal injury law firms because they focus on keeping legal costs down or as low as possible. The firm has a client friendly fee model or structure which means that our clients typically receive or recover more of their damages with less of their claim being eaten or eroded by legal costs.
Our hourly rates are modest when compared with our competitors and have not increased in 8 years. For example, the Directors of the firm have an hourly rate of $495 per hour inclusive of GST.
Many firms who practise in personal injury law have hourly rates for solicitors and senior lawyers which are as high as $800 to $1000 per hour.
Many firms also charge their clients what is called an ‘uplift fee’ for providing their services on a speculative or “No Win – No Fee” basis. The uplift fee is permitted by the law and the law allows law firms to charge an uplift of up to 25%. vbr Lawyers do not charge their clients any uplift fee and we offer our services on a speculative or “No Win – No Fee” basis.
For example, if the professional costs to run a case is $30,000.00, if you have retained a firm that charges an uplift fee of 25%, your legal bill will by higher by $7,500.00. If the case is a bigger and/or more complex case which takes longer to resolve and the professional costs are say $100,000.00 and you have retained a firm which charges the 25% uplift then you will be paying an additional $25,000.00.
The other focus that we have is ensuring that all of our clients are looked after or represented by experienced, skilful lawyers who practise exclusively in personal injury law.
John, Greg and Sean are all very much ‘on the tools’ and are personally involved in all aspects of the firm and the cases which they take on.
If you are a client of vbr Lawyers, you will not have the experience of your case being passed on from lawyer to lawyer due to high staff turnover which happens at some law firms.
How to get in touch with us?
By telephone or email at any of our offices.
We offer a free initial case assessment so there is no pressure or stress to receive some preliminary advice regarding your rights and options.
You will find our team to be friendly and welcoming from the first phone call or consultation until the end of your claim.
Most of our clients have been referred to us by past or current happy clients.
At vbr Lawyers, a happy client is the ultimate reward for us.
