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Total and Permanent Disability (TPD) insurance provides financial support to individuals who suffer from a disability that prevents them from working and earning an income. If you find yourself in a situation where you are unable to work due to a severe disability, a TPD claim can offer much-needed financial relief from financial stress, particularly if you are the breadwinner in a family.

In this article, we will explore the eligibility criteria for making a TPD claim, provide examples of different TPD scenarios, and outline the claims process to help you navigate the process effectively. Speaking with legal professionals with proven experience in handling a TPD claim is advisable, to ensure your claim is in order and to enhance the prospect of its acceptance.

Eligibility criteria for a TPD Claim

Eligibility criteria for TPD claims can vary based on the specific insurance policy and the provider. However, some common factors are considered across most policies. To be eligible for a TPD claim, you typically need to meet the following criteria:

Permanent disability: You must have suffered a total and permanent disability that prevents you from engaging in your own occupation or any occupation for which you are reasonably suited based on your education, training, or experience.

Waiting period: Most TPD policies have a waiting period, usually between three to six months, during which time you must remain totally and permanently disabled before you can submit a claim.

Definition of TPD: The definition of TPD can vary between policies. Some policies have an ‘own occupation’ definition, where you are considered TPD if you can no longer work in your specific occupation. Others have an ‘any occupation’ definition, where you are considered TPD if you can’t work in any occupation for which you are reasonably suited. The ‘any occupation’ definition of disability is the only one available if you wish to hold TPD insurance through your superannuation. Any occupation TPD cover is also generally less expensive than own occupation policies, the latter potentially providing a payout even if you’re able to return to work in another occupation. Certain own occupation policies may also not provide cover for specific occupations that are deemed high-risk.

Evidence and documentation: You will need to provide extensive medical evidence and documentation from qualified healthcare professionals to support your claim. This may include medical reports, diagnostic tests, treatment records, and statements from specialists.

Examples of conditions that may give rise to a TPD claim

TPD claims can arise from various life-altering circumstances. Here are some examples of scenarios that may qualify for a TPD claim:

Accidents and injuries: A person involved in a severe accident resulting in permanent physical disabilities, such as loss of limbs, loss of sight or hearing, or paralysis, may be eligible for a TPD claim.

Serious illnesses: Individuals diagnosed with critical illnesses such as advanced stages of cancer, multiple sclerosis, or severe heart conditions that prevent them from working may qualify for a TPD claim.

Mental health conditions: Severe mental health disorders, such as severe depression, anxiety, or post-traumatic stress disorder (PTSD), which hinder a person’s ability to work, can also be grounds for a TPD claim.

Chronic conditions: People suffering from chronic illnesses or conditions, such as chronic back pain or autoimmune diseases, that significantly impair their capacity to work may be eligible for a TPD claim.

What’s involved in the TPD claims process

Making a TPD claim involves several essential steps to ensure a smooth and successful process.

Firstly, you should notify your insurance provider about your intention to make a TPD claim as soon as possible. Obtain the necessary claim forms and documents from the insurer, or you may find them online at the insurer’s website.

Next, all relevant medical evidence and documentation to support your claim must be collected, including medical reports, specialist assessments, test results, treatment plans, and any other relevant records. A personal injury lawyers can help expedite this process for you when handling your claim.

Then fill out the claim forms accurately and provide comprehensive details about your disability, its impact on your ability to work and lifestyle, and any other relevant information requested by the insurer. Submit the completed claim forms along with the supporting documentation to the insurer.

The insurer will review your claim and conduct an assessment to determine if you meet the policy’s TPD criteria. This may involve seeking additional information from medical professionals or conducting investigations. After the assessment, the insurer will communicate their decision on your claim. If approved, you will receive a lump sum payment based on your TPD policy’s insurance. If your claim is denied, you may have the option to appeal the decision or seek advice from a legal professional. Payouts can range between $30,000 up to $1.5 million in some cases.

Seek specialist advice

When making a TPD claim as a result of accident, illness, or a chronic condition, understanding the eligibility criteria (including the importance of waiting periods), gathering comprehensive evidence, and following the claims process diligently are all vital to a successful claim. If you find yourself in such a situation, the guidance of expert legal professionals such as our team at GC Law can be the difference between having your claim accepted or rejected. Contact us the personal injury lawyer today if anything in this post raises questions for you.

One of the first questions a person seeking compensation for an injury they’ve suffered at work will ask is how much money they may be entitled to receive under Queensland’s workers’ compensation scheme.

There are a number of factors which influence the amount of money paid to an injured worker as either statutory benefits or a lump sum paid in the case of suffering a permanent impairment from the injury. They key considerations are:

• the circumstances of the accident;
• the nature and extent of the injuries sustained;
• the nature and extent of any pre-existing injuries;
• the age and life expectancy of the person;
• whether the injuries are likely to affect the injured person’s ability to earn an income in the future;
• the level of care required, past, present and future, both paid and gratuitous (family members, etc);
• medical and other expenses;
• likely future expenses.

All of these factors are considered in determining what a person making a workers’ compensation application will receive if their claim is accepted by WorkCover Queensland or an insurer.

What can the claim cover?

Compensation payouts to injured workers, as outlined above, include statutory benefits, a lump sum offer for permanent impairment, and common law damages if the negligence of the employer or a colleague in causing the injury can be established.

If a WorkCover statutory claim is accepted, an injured worker will receive money to compensate for:

• lost wages for the time you are unable to work;
• the costs of medical treatment (including doctors’ consultations, medicines, x-rays, etc);
• the costs of necessary hospital stays;
• rehab costs, such as physio or a return-to-work programs agreed between the worker and their employer;
• travelling expenses, i.e. to and from medical appointments or the hospital.

Weekly benefits paid initially once your claim is accepted are calculated on the date the injury occurred, how much time is needed off work and whether your terms of employment are governed by an industrial award. The payments are then worked out as a percentage of your weekly wage with your current employer in the 12 months before your injury. If you’ve been employed less than 12 months, the benefit will be calculated on what you’ve earned in the period you’ve been employed. The payment reflects what you would have earned had you not been injured, including salary or wages, duties, penalties, allowances and overtime.

If you are being paid under an industrial award, you are eligible to receive the greater of 85 per cent of your normal weekly earnings (NWE) or the amount payable under the instrument. Injured workers not under an award are eligible to receive the greater of 85 per cent of normal weekly earnings or 80 per cent of a full-time adult’s ordinary time earnings in Queensland, up to 26 weeks. For claims between 26 weeks to 104 weeks, the payment is the greater of 75 per cent of NWE or 70 per cent of ordinary time earnings. After 104 weeks compensation will depend on the worker’s degree of impairment.

It should be noted that a WorkCover claim is ‘no fault’ – no one need to be legally responsible for the injury in order to make the claim. Benefits will continue until you are fit to return to work and your injuries have reached maximum medical improvement; when you receive a lump sum offer; when you’ve been receiving weekly payments for five years; or when your total weekly compensation reaches the maximum amount payable.

Lump sum offers: Once your injuries have stablished, an accredited medical practitioner can assess your degree of permanent impairment (DPI). Permanent loss of movement, loss of a limb, disfigurement or severe mental disorder are some examples of permanent impairments.

A ‘Notice of Assessment’ from WorkCover Queensland will make an offer of a lump sum payment to finalise the statutory compensation claim based on a set calculation. A DPI of 20 per cent or above allows the claimant to accept the lump sum compensation amount and still make a claim for common law damages, but for a DPI of less than 20 per cent, a choice must be made between the lump sum or the damages claim. Generally speaking, a common law negligence claim will yield a greater payout if successful.

Expert legal advice from qualified compensation law professionals is essential when considering a lump sum offer.

A workers’ compensation case example

In Nkamba v Queensland Childcare Service Pty Ltd [2022] QDC 292, a childcare centre worker was setting up an activity for the children when, laden with equipment from a storage shed, she stepped backwards and rolld her ankle on a small Lego block left on artificial grass, rupturing her anterior talofibular ligament. The plaintiff, Ms Nkamba, said the incident occurred around 6am in the morning when it was still dark and that a defective light in the storage shed impaired visibility in the area where the Lego brick lay. The defendants argued there was enough general light for Ms Nkamba to have seen the block and that she had been contributorily negligent in causing the injury. It was discovered Ms Nkamba had also previously told her employer about the defective shed light, to no effect.

Ms Nkamba was paid statutory benefits under a WorkCover claim but the court also awarded her $197,013.98 in damages, clear of any workers’ compensation refund liability, with $116,288 awarded for past economic loss as a result of her injury.

Speak with compensation law experts

There is a lot to do in making a workers’ compensation claim, including gathering evidence, attending medical appointments and meeting time limits for making an application. The process can be stressful and time-consuming, before any consideration of what sort of payments you might be entitled to. To remove some of the stress and worry from making a claim, discussing your case with our professional team at GC Law is highly advisable. Our personal injury lawyers can give you an assessment of the strength of your claim, a timeline of how the claim should progress, and an appraisal of how much compensation you may be entitled to. Contact us today to help us put your mind at ease if you’ve been injured at work.

Not all workers are aware that they can claim for compensation if they suffer an injury while travelling to and from their place of work, known as ‘journey claims’.

In this article, we’ll look at what’s required to make a successful journey claim, which our professionals at GC Law can help you with if any of the information in this post applies to your personal situation.

Firstly, a journey claim is possible if a worker is injured:

• travelling to or from home and their workplace;
• travelling to or from a place of training related to their employment;
• travelling to or from medical or rehabilitation undertaken as part of a WorkCover workers’ compensation claim;
• travelling between jobs with different employers, or;
• travelling on work-related business, either locally, interstate or internationally.

While in certain circumstances an injury sustained at home before you begin your journey can be claimed for, this injury can not be the subject of a journey claim. For this kind of claim to be successful, the journey must be directly between your home and place of work, or training location, without any major delay or deviation, or if travelling outside your normal work route, your employment must be a significant contributing factor to your injury.

What compensation can a journey claim provide?

A journey claim resembles a typical workers’ compensation claim for an injury that occurs at work. Medical and rehabilitation expenses; the costs of travel to and from medical appointments; paid care and assistance while you are recovering from the injury; and wage benefits between 80 to 100 per cent of your normal gross salary are part of a successful journey claim.

Statutory lump sum payments are also available in the event you’re permanently impaired and unable to return to work, or your capacity to do your old job is reduced.

Like any workers’ compensation claim, medical assessment of your injury as soon as possible after the accident is crucial in order for your claim to go forward. Either at the time you see a doctor or shortly afterwards, a work capacity certificate needs to be obtained from the treating doctor to be included with the application for compensation.

The journey-related injury should also to be reported to your employer as soon as possible and it’s likely the employer’s accident reporting procedure will need to be followed. In some cases it may also be necessary to report the accident to police, and any police report of the accident obtained.

Making a journey claim also requires that an employee is classified as a worker under Queensland’s Workers Compensation Act, meaning an individual employed under a contract and considered an employee for tax purposes.

A journey claim under the state’s workers’ compensation law is ‘no-fault’, meaning the application will be accepted provided you are classified as a worker and as long as none of the following circumstances apply to your claim:

• you did something unlawful during the journey for which you’re claiming that significantly contributed to the injury-causing accident;
• there was a significant delay before you started the journey, or;
• you made a substantial interruption or deviation from your usual journey, such as visiting a supermarket en route, for example.

These exceptions aside, your journey claims must be filed with WorkCover within applicable time limits, supported by relevant evidence.

It should be noted that in situations where a worker is involved in a car accident caused by the negligence of another driver on their way to or from work, it’s possible to also make a personal injury claim against that driver’s CTP insurer alongside the workers’ compensation claim. Where the accident was not the fault of the worker, the CTP insurance of the driver at fault will reimburse the workers’ compensation insurer for the workers’ claim.

Real-life examples of journey claims

In the 2012 case of Sharon Olive Johnston v QComp, a nurse who left home for work before realising she had forgotten her ID card then fell down stairs at her home after she’d returned to retrieve it. Workcover Queensland, QComp and the Queensland Industrial Relations Commission rejected her claim for compensation of the injuries she sustained under the Act, arguing that her first journey had ended once she returned home and her work journey had not re-commenced as she had not left home when the injury occurred. The Industrial Court subsequently upheld this decision, reinforcing that a journey for the purposes of work is terminated by the boundaries of a worker’s residence and their workplace.

By contrast in the 2012 case of Kennerley v QComp, a Qantas flight attendant who was in a car accident while traveling to renew his United States work visa outside of work hours initially had his journey claim for compensation rejected by the airline. Q-Comp then set aside Qantas’ decision before the airline won an appeal at the Industrial Relations Commission. Mr Kennerley finally appealed to the Industrial Court of Queensland who found that even though he was not performing work for Qantas or even on his way to work on the day of the accident, he ‘was doing something which he was reasonably required, expected or authorised to do in order to carry out his duties’. He needed the US visa in order to travel for work and this caused him to be on the road when the accident occurred, meaning his injuries were suffered in the course of his employment and his employment was a significant contributing factor to the injury.

Unsure whether you have a journey claim? Call our expert team

Expert legal advice is essential if you’ve been injured travelling to or from work. Insurers will often vigorously challenge the claim that the worker’s journey was connected to their employment duties, particularly if there is any deviation from the usual route. They may also challenge whether a person is a ‘worker’ for the purposes of the Act and question the severity of the injury.

Strict time limits also apply to these claims, the application needing to be lodged with WorkCover Queensland no later than six months after the injury is sustained or is known.

The complexity of these claims mean the expertise of legal professionals with experience in collecting the evidence required to support your claim is vital. Contact our friendly team of personal injury lawyers at GC Law today.

Social media has quickly become one of the most transformative tech tools in modern society. More than 80 per cent of the Australian population are active social users as of 2021, a rise of 30 per cent in just six years.

Use of social media is considered an ongoing real-world experiment by many technology experts, with both positive and negative consequences. On the one hand, it allows people to instantly connect and stay in touch all over the world. On the other it exposes users, including vulnerable people such as children, to potentially harmful content.

The implications of social media use are already well-known in modern workplaces. Most employers now have a code of conduct governing how employees can use social media in work hours – but some also stress the need for the company’s reputation to be protected by employees when posting to social media in their personal time.

The focus of this article is on the role social media can play in a workers’ compensation claim by an injured employee.

How can your social media use affect your workers’ compensation claim?

As use of social media has grown, so has its use in legal proceedings, including workers’ compensation claims. People share so much of their lives on social media, including photos and descriptions of family gatherings, overseas trips, holidays, parties, weddings and other social events. They also exchange personal news and views with family and friends such that an otherwise disinterested observer could easily find out many details of their lives.

Insurance company investigators, whose job is to guard against fraud, have become practised at examining the social media accounts of those seeking compensation to find information that might help them deny or mitigate the claim. This process will include looking through the accounts of family and friends in what has been described as a form of electronic surveillance to try and verify the extent and severity of the claimant’s injury.

What’s important to note is that social media posts can be used as evidence in denying the workers’ compensation claim, or proving the claimant’s contributory negligence in causing the injury. Pictures or descriptions of a claimant water-skiing, hiking or doing anything physically active may hamper their claim to being injured and unable to work, for example.

For this reason, a person making a workers’ compensation claim will usually be advised by an expert legal professional to approach social media posting with extreme caution during the period of making and resolving the claim. It doesn’t mean they must go ‘cold turkey’ on social media, but be extra careful and vigilant about what they post and how they interact with others.

The importance of privacy settings

Many people who use social media platforms are unaware of how ‘public’ their information is. All platforms now have extensive privacy settings to ensure a user can restrict who can see and share the information they post. It’s essential for a person making a workers’ compensation claim to activate privacy settings on their social media accounts to restrict who can access their posts. Additionally, users should not share passwords or accept friend requests from random people.

Examples of where social media use has been crucial in a claim

The leading case example for the use of social media in a workers’ compensation claim is Digby v The Compass Institute Inc and Anor from 2015. Ms Digby claimed an injury at work had left her with a tremor in her right arm and hand and she was unable to return to work. The impact of the injury on her lifestyle and overall enjoyment also caused her a psychiatric injury, she claimed.

In a trial of the claim, material from Ms Digby’s Facebook account was admitted as evidence which cast doubt on her injury claim. Her social posts suggested there may be other explanations for her psychological state and showed social activity that contradicted her claim that the injury had caused her depression and isolation. The impact of these posts was that the final amount of compensation she received was significantly reduced.

Caution required using social media when making a workers’ compensation claim

An injured worker who decides to pursue a workers’ compensation claim needs to exercise extra caution when using social media until the claim is resolved. As mentioned, this means refraining from posting pictures and/or videos that shows them undertaking strenuous physical activity – playing sport, bushwalking, gardening or even material which suggests a busy and active social life – material that could potentially be used by an insurer to challenge the claim.

Similarly, a claimant should exercise care not to post anything that suggests they are not undertaking necessary recovery and rehabilitation for the injury. In the end, workers’ compensation is designed to help the injured worker back to work, not keep them away permanently. A person making a claim should also refrain from commenting on social media – or replying to anyone who comments on their posts – about the claim as this material could potentially be considered an admission of liability or partial liability.

It’s wise for the claimant’s family and friends to also exercise restraint by not posting on social media about the claim, or divulging information that undermines the worker’s claim of injury. A photo posted by a friend may derail your claim.

All discussion of the claim, ideally, should remain confidential between the person making the claim and their legal representative.

The need for expert legal advice

It’s common practice now for insurance companies to trawl through a person’s social media accounts, whether they are making a workers’ compensation, personal injury, motor vehicle or public liability claim. If an injured person makes a common law claim for damages, social media posts may also be part of the compulsory discovery process. For these reasons, it’s crucial to be more cautious about how social media is used after the injury in case posts become part of the evidence used to deny your claim. At GC Law our persona injury lawyers are compensation specialists who can advise you on how to manage social media use during a workers’ compensation claim as well as try to limit an insurer’s ability to use the material. Contact Our Compensation Lawyers today for a discussion of your claim.

Workers’ compensation schemes in all of Australia’s states and territories provide financial assistance to those injured at work to help them rehabilitate, recover and return to their jobs as soon as possible.

Under the state/territory schemes and Australia’s Fair Work Act, most employees who are injured in the course of their employment are legally protected from being dismissed during the process of making a workers’ compensation claim. It is also unlawful for an employer to pressure an employee not to make a workers’ compensation claim, by offering to pay for their medical expenses or through other promises about their work responsibilities, for example.

We’ll look in this post at the rights and obligations of both workers and employers when it comes to maintaining an employee’s job during a workers’ compensation claim, including a person’s right to pursue an unfair dismissal claim if they lose their job in this period.

A worker’s legal entitlements under the workers’ compensation scheme and the Fair Work Act

A work-related injury can make an employee vulnerable to an unscrupulous employer who dismisses them on the basis they can no longer perform their assigned duties, or perform it to the same standard as pre-injury.

But under workers’ compensation schemes in Australia’s states and territories, time periods apply during which an employer must not terminate an employee. In Queensland, under the Workers’ Compensation and Rehabilitation Act 2003 (the WCRA), a worker who can’t perform in their usual role due to a work-related injury or disease cannot be dismissed within 12 months of the injury or illness becoming known. This law is aimed at preventing employers from also taking action such as demoting or suspending an injured worker, restricting their pay or reducing their hours of work, or denying them an opportunity for promotion.

An employee can then ask their employer to return them to their old job within 12 months after the injury by providing a medical certificate from a doctor confirming their fitness to return to work. An employer can be fined for ignoring these provisions of the WCRA.

If an injured worker does not return to work after 12 months and there are no suitable alternative duties available for them, the employee can be legally terminated – provided that it’s confirmed the work-related injury will prevent them from returning to work for another three months.

Additionally, under the Fair Work Act 2009 (Cth) (‘FWA’) an employer is not permitted to dismiss an employee because the employee is temporarily absent from work due to illness or injury of a ‘prescribed kind’. A prescribed kind of illness or injury exists once the worker provides a medical certificate or a statutory declaration about the illness or injury within 24 hours of the start of the absence period. ‘Temporary absence’ has been defined as a three-month period – either consecutively or cumulative absences totalling three months over a 12-month period.

The option of unfair dismissal if terminated while on workers’ compensation

Apart from the protection afforded workers under the WCRA, under the FWA an employer who dismisses an employee because they are temporarily absent from work due to an illness or injury opens the possibility the injured employee can pursue an unfair dismissal claim on the basis of section 385 of the Act that the termination:

• was harsh, unjust or unreasonable;
• was not consistent with the Small Business Fair Dismissal Code;
• or, was not a case of genuine redundancy.

In section 387, the criteria considered by the Fair Work Commission in determining an unfair dismissal application are set out, with factors including whether there was a valid reason for the dismissal related to the person’s capacity or conduct; whether the person was notified of that reason; and whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person.

An injured worker can still be made redundant while on workers’ compensation if the reason is unrelated to the injury, but the employer must comply with the appropriate legislation, give the employee written notice (which can run at the same time as their absence on workers’ compensation) and pay out all entitlements including redundancy pay.

Employers’ obligations regarding workers’ compensation

Apart from not dismissing an employee within 12 months of the injury, employers have a number of key obligations when it comes to an employee’s workers’ compensation claim including:

• reporting the injury and beginning the claim process;
• engaging the injured worker to discuss treatment of the injury, possible workplace changes to provide a safer work environment, rehabilitation and return-to-work plans, including flexible working arrangements to assist with recovery;
• keeping the insurer informed of the worker’s progress in recovering to be able to return to work;
• maintaining effective workplace rehabilitation policies and procedures.

A conscientious employer will monitor the health and well-being of an employee who sustained a work-related injury to hasten their return to work whether or not they received workers’ compensation benefits for lost wages and medical/rehab costs.

WorkCover Queensland recently highlighted the case of an employee, Giada, who was diagnosed with epicondylitis, a repetitive strain injury, which prevented her from working in her job as a manager and gelato-maker at a Gelateria. After surgery, she was referred to a rehabilitation specialist by the work authority to help her return to work. Her boss, Matteo, provided lighter, alternative duties to help get her back in the workplace faster.

What an employee should do while on workers’ compensation

The most important thing a person with a work-related injury can do is maintain open contact with their employer about the injury, including their medical treatment and their progress to recovery. This includes early reporting of the injury after the incident or when they become aware of it and being transparent about any pre-existing injuries. Employees should then concentrate on medical treatment, including discussing return-to-work plans with their employer (lighter duties, etc). It’s advisable for an injured employee to keep a journal or record of how their injury affects their daily life, as well as all records associated with the injury (travel expenses, medical receipts, etc).

Finally, it’s important to act quickly and correctly when filing a workers’ compensation claim. Time limits apply and you could miss out on available statutory benefits if you wait too long after the injury to make a claim. The guidance of experienced compensation legal professionals can remove the stress and worry of making a claim. At GC Law, workers’ compensation is our specialty. We will compassionately discuss your injury as soon as possible after it occurs and provide clear, simple advice on the next steps. Contact us today.

Queensland’s Workers’ Compensation and Rehabilitation Act 2003 (‘the Act’) protects workers in the unfortunate event of a work-related injury and sets out the rights and responsibilities of both employees and employers under the scheme.

The scheme operates to provide income support to injured workers while they’re off work; pay for reasonable medical and rehabilitation treatment, and other related expenses; and provide a compensation payment in the case of permanent impairment or death.

Under the Act, employers are required to take insurance coverage against their liability for compensation and damages through a policy with a WorkCover-approved insurer, or under a licence as a self-insurer, meaning they managed their own workers’ compensation claims.

While the scheme is recognised as operating efficiently and effectively in helping workers in the period after they are injured, facilitating recovery until they are able to return to work, it can also be mis-used by both unscrupulous claimants and employers. Stories of workers feigning injury to go on ‘compo’ are part and parcel of workplace folklore in Australia – but less well-aired are the ways employers can avoid or lessen their responsibilities under the Act, which we’ll discuss more in this article. Breaches of the Act’s provisions by an employer can be particularly egregious given the considerable imbalance in power and resources between it and the injured worker.

Who is a worker?

Many workers’ compensation disputes turn on the question of whether, under the Act, the injured party can legitimately be described as a worker employed by the company. In the modern workplace where many more staff are sourced through labour hire arrangements, or engaged on temporary contracts, or are described as a ‘contractor’, uncertainty about whether a person is a worker for the purposes of a compensation claim when injured is a commonplace concern.

To avoid the cost of insuring the worker, certain employers may argue the injured person is not an employee for the purposes of the legislation, and may cite a contractual arrangement as evidence the person is an independent consultant or contractor responsible for their own insurance arrangements. Helpfully the Act sets out those who are, and who are not, considered workers. For instance, salespeople paid entirely or partly by commission, and labour hire, group training or holding company employees, are considered workers. Directors, partners and those with a contract to obtain services from a company, trust or partnership are among the categories excluded as workers.

The requirement to report an injury

Under section 133 of the Act, an employer commits an offence if it does not report any injury sustained by a worker in the course of their job to its insurer within eight days of the injury occurring. Under section 133A, an employer must immediately notify its insurer if the worker asks for a payment to be made (in place of wages or for medical treatment, for example), or the employer makes such a payment.

These responsibilities of the employer apply regardless of whether:

• the worker goes forward with a claim for workers’ compensation;
• the employer believes the injury is deserving of a claim for compensation.

In practice, however, employers may try to avoid the reporting requirement in an attempt to preserve their safety record – particularly in industries such as mining and construction. Instead, it may assure the worker it will meet the costs of medical treatment and rehabilitation, and organise lighter, alternate work duties for them, provided the injured person does not make a workers’ compensation claim. Anecdotally this practice is more prevalent among self-insured employers, who manage their own workers’ compensation claims.

For employees whose work-related injury develops or becomes worse some time after the incident, however, this practice may prevent them from accessing statutory workers’ compensation benefits, which must be applied for within six months of the date of the accident. An insurer is likely to reject any application made after this time limit.

The importance of medical assessment of the injury

Medical assessment of a work injury is a crucial part of a workers’ compensation claim, determining the extent and nature of the injury, when the worker may be able to return to work, and whether they can resume their former duties or require an amended work plan.

But when a worker is injured, certain employers may insist on accompanying the worker during the doctor’s appointment in a possible attempt to influence the assessment of the injury. This practice is a breach of a worker’s privacy. While a worker is required to submit a medical certificate or certificate of work capacity to their employer as part of the claims process, they are not legally obliged to allow their employer to attend doctors’ appointments.

Can an employer sack an injured worker?

In cases where a worker’s injury prevents them from performing in their former role, it’s tempting for an employer to terminate the employee and get them ‘off the books’. The Act, however, protects injured workers from dismissal ‘solely or mainly’ because of the injury for a period of 12 months from the date of the accident. A penalty up to $5,338 applies to employers who sack a worker during this period.

In most cases an employer has a legal obligation to offer an injured worker ‘suitable duties’, determined by the nature of the injury. In this situation, a worker may be required to accept reduced hours or different duties.

Need help? Speak with workers’ compensation specialists

If you have questions about the issues raised in this article, contact our professional team at GC Law. We are compensation specialists who can help clarify the issues involved in making a workers’ compensation claim, particularly if an employer has tried to avoid its responsibilities under the Act. Contact our Compensation Lawyers, today for an initial consultation.

Australia’s workforce is undergoing a rapid transformation with some of the nation’s largest companies relying more on external contractors, labour hire and temporary staff, in preference to adding full-time staff to their books. It’s estimated there are now more than 1.1 million independent contractors or self-employed people in the Australian workforce.

There are many implications of this change, from industrial relations to labour laws. A common question that arises out of the increased use of independent contractors is whether they are covered under Queensland’s Workers’ Compensation and Rehabilitation Act 2003 (‘the Act’) if they are injured while working for a company. Under the law, are they ‘workers’ for the purposes of making a compensation claim?

All employers in Queensland must insure to pre-empt compensation or damages if a member of its workforce suffers a work-related injury or illness, either through a WorkCover insurance policy or under a licence as a self-insurer.

How is a worker defined in the legislation

The Act sets out a definition of who is considered a worker for the purposes of the workers’ compensation scheme:

• only an individual, not a corporation, partnership or trust (sole traders may be considered workers);
• a person who works under a contract and, in relation to the work, is an employee for the purpose of assessment for PAYG withholding;
• someone who works under a ‘contract of service’, like a sub-contractor. This worker may do the same work as an employee and could also be a worker under the Act.

A contract of service, it should be noted, is distinguished from a contact for services – the latter documenting the commercial arrangement between an employer and an independent or external contractor.

WorkSafe Queensland sets out of a number of common law tests to help employers and contractors distinguish between whether someone is a worker or a contractor for the purposes of a workers’ compensation claim.

For employees, a person is a worker if:

• the worker can’t pay someone else to do the work (i.e., subcontract the job);
• they are paid by the hour for the time they work, per piece of work or for a commission;
• they don’t provide their own tools or equipment for the job or, if they do, they are paid an allowance for this;
• they aren’t legally liable for the cost of fixing any faults. The employer is responsible;
• the employer has the right to tell the worker where and how to do their job;
• the worker works within and is considered part of the employer’s business.

By contrast, a person is considered a contractor if:

• they can pay someone else (i.e. subcontract out) to do the work;
• they are paid for a job done based on a verbal or written quote they provided;
• they provide their own tools and equipment for the job and don’t get an allowance for this;
• they are legally responsible for their work and for the cost of fixing any faults in the work;
• they can do the work in the way they see fit, subject to the specific terms of any contract or agreement;
• they operate their own business independently from the employer and are free to accept or refuse additional work.

Generally speaking independent contractors are not covered by the workers’ compensation policy of an employer with whom they have a contract for services, and instead must look after their own insurance arrangements to cover the possibility of work-related illness or injury. As a result, contractors can be left in a vulnerable position if they are injured in the course of their work and are uninsured. They may be forced to take extended time off work without income to recover, affecting their family’s welfare.

Do contractors have any other protection?

If an independent contractor can show that they were engaged to provide services to an employer, and were injured while performing that work due to the negligence of the employer or one of its employees, they may have a claim for damages under Queensland’s Personal Injuries Proceedings Act 2002 (Qld). This avenue is in the nature of a personal injury claim, beginning with a notice of claim to the employer, and could potentially result in a more significant amount to compensate for an injury than a workers’ compensation claim. The claimant may also be able to recover their legal costs as part of the claim.

The importance of expert legal advice

Workers’ compensation claims can become complex particularly when employers and insurance companies begin challenging the status of the injured person as a worker. Where they instead claim the injured party is an arm’s-length contractor not entitled to make a workers’ compensation claim for lost wages and the costs of medical treatment, the tests outlined above will come into play.

Consulting with legal professionals who possess an established track record in handling workers’ compensation matters is highly advisable. At GC Law, our workers’ compensation lawyers will clarify the issues involved in making a claim and advise you of your options should you be an independent contractor injured while working. Contact us today to discuss your case.