Queensland Workcover Claims
27 May 2014
Who Can Make A Claim?
If you’ve been hurt at work in Queensland you are entitled to worker’s compensation under a “no fault” system. This means you can claim worker’s compensation benefits irrespective of fault on the part of the employer. Benefits include loss of wages, medical and hospital expenses and payment of a lump sum of compensation.
WHO IS A WORKER?
A worker is anyone employed under a contract of service, regardless of their tax paying status. This usually means anyone who earns a salary or wages, has set hours or who is supervised or can be dismissed by their employer.
Some types of volunteers and work experience students may also be eligible for worker's compensation benefits.
People who are working directors of their own company, partners engaged by their own partnerships, self-employed people and professional sports people are not entitled to worker's compensation.
If you’ve been injured and you’re unsure about whether you are a "worker", you should still lodge a claim form.
What Is An “Injury”?
The law in Queensland defines an injury as a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury. Your lawyer can advise you whether your injury falls within this definition.
An “injury” can occur at work, on the way to or from work or on a rest break. You may also be injured while travelling as part of your job or while you are visiting other sites or workplaces as part of your employment. You may also be covered if you are working from home at the time of your injury.
Physical injuries, psychological and psychiatric disorders and diseases are all covered by the definition of injury. You can also claim for an aggravation of a pre-existing condition.
Death from an injury or disease is also covered.
How Do I Make A Claim?
You can lodge a claim for workers compensation up to six months after the date of your injury. To lodge a claim you can:-
• Lodge a claim online.
• Complete a claim form and upload using WorkCover’s online service.
• Fax a claim form to 1300 651 387.
• Post a claim form to GPO Box 2459, Brisbane Qld 4001.
• Call WorkCover on 1300 362 128.
A medical certificate from your doctor must accompany your claim form.
Deciding A Claim
WorkCover must assess an application for worker's within 20 days.
What If The Claim Is Not Accepted?
If the claim is not accepted, a person may apply to Workers’ Compensation Regulator for a review.
If a person is totally or partially incapacitated for work, they may be eligible for payments of weekly compensation. The amount of weekly compensation you will receive will depend on the length of time that you are unable to work, the date of your injury, the length of your claim and whether you are working under an award or other industrial agreement.
Generally, a person is entitled to 85% of their normal weekly earnings for the first 26 weeks of incapacity. After 26 weeks and up to 52 weeks, the rate of payment decreases to 75% of their normal weekly earnings.
Tax will be deducted from your weekly compensation. WorkCover will not pay superannuation on your behalf.
Weekly payments will stop when the first of the following events occurs:-
• You are able to return to work and are no longer injured;
• You receive a lump sum offer;
• You have been receiving weekly compensation for 5 years;
• Your total weekly compensation reaches the maximum amount payable.
Medical and Rehabilitation Costs
Provided you have a current worker's compensation medical certificate, WorkCover will usually pay for all reasonable medical and rehabilitation costs covered by the dates on the medical certificate.
The types of expenses that will be paid include:-
• Medical treatment by a doctor, dentist, physiotherapist etc;
• Surgical and hospital expenses (including bandages and prescription medicines);
• Rehabilitation treatment and equipment (such as wheelchairs and crutches);
• Travelling expenses.
For non-elective hospitalisation, WorkCover will cover up to 4 days in hospital, although this period can be extended with the agreement of WorkCover. WorkCover will only pay for elective hospitalisation if it has been agreed to prior to the hospitalisation.
WorkCover will pay your travel expenses for attending a medical appointment with doctors or for rehabilitation.
Lump Sum Compensation
If you have suffered a permanent impairment as a result of a work related injury, you may be entitled to lump sum compensation for loss of efficient use of a part of your body or for loss of part of the body. Assessments for permanent impairment are usually conducted when your injury becomes stable and stationary and is unlikely to improve with further treatment.
You can ask WorkCover to be assessed for permanent impairment or WorkCover can make the arrangements themselves. The percentage of permanent impairment is used as a starting point to calculate the amount of lump sum compensation that WorkCover will offer you.
Most people who receive an offer of lump sum compensation will be required to decide between accepting the amount of the offer and pursuing a common law claim. A common law claim will arise in circumstances where a person’s injury was caused by the negligence of their employer. If you’ve received or are about to receive an offer of lump sum compensation, legal advice should be obtained immediately.
Roles in the Rehabilitation Process
Role of the injured worker
An injured worker must genuinely participate in rehabilitation. If you don’t, WorkCover may suspend payment of compensation benefits.
You are required to:-
• keep WorkCover informed of any material change in your circumstances; and
• to advise WorkCover of any return to work, while receiving weekly compensation payments.
If WorkCover is not informed of any new circumstances, penalties can apply.
Role of the employer
Employers must take every reasonable step to help you with rehabilitation while you are receiving compensation benefits. If they don’t, penalties apply.
An employer with 30 or more employees in a high risk industry must have a Rehabilitation and Return to Work Coordinator. The coordinator is responsible for planning and monitoring the workers reintegration into the workplace. They are required to liaise with you, your doctors, rehabilitation providers and WorkCover, until the claim is finalised.
An employer with less than 30 employees is required to keep in regular contact with you and WorkCover, in addition to supporting the rehabilitation process.
Role of WorkCover
A WorkCover Customer Advisor is the person who manages the injured worker’s claim until their condition stabilised or you recover. A customer advisor is responsible for approving treatment and working with rehabilitation providers to set recovery goals and develop a return to work plan. The customer advisor is the central point of contact during the rehabilitation process.
Role of the treating doctor
The treating doctor’s role in the rehabilitation process is to determine what rehabilitation you need as a result of your work related injury. Rehabilitation might include physiotherapy, occupational therapy, psychological counselling or training for new job skills.
The customer advisor will consult the treating doctor and other rehabilitation providers to develop a return to work plan. The treating doctor must give approval before any plan is started, or as changes to the plan occur.
Sometimes, WorkCover will engage an external occupational therapist to conduct a worksite assessment, to gather information regarding rehabilitation or developing a suitable duties program.
Role of the health providers
Health providers, other than treating doctors, play an important role in the rehabilitation process. Health providers are required to:-
• provide focussed rehabilitation aimed at you returning to work;
• provide assessments, written reports and give feedback to customer advisors;
• keep WorkCover advised of your progress; and
• participate in case conferencing when asked to do so.
What is case conferencing?
A case conference is a discussion about your treatment, rehabilitation or return to work, and is usually held between you, your treating doctor or rehabilitation provider and the WorkCover customer advisor. A case conference can be held face-to-face or by telephone.
The role of a doctor and health provider at a case conference
At a case conference, information is shared about your injury, future treatment, rehabilitation and return to work needs. In most cases, a case conference replaces the need for a written report. After a case conference has concluded, the WorkCover customer advisor will provide a written summary of the discussion to everyone who attended the case conference.
How do doctors and health providers get paid for a case conference?
WorkCover will pay the doctor’s and health provider’s time based on item numbers in the Regulator’s Table of Costs. WorkCover includes the relevant item number and fee on the case conference form. The invoice can be faxed to WorkCover and it will be processed.
Common Law Claims
Common law claims exist to provide compensation for the losses that you have suffered as a result of the injury that you sustained at work.
You are only eligible to make a common law claim if you can show that your employer breached its duty of care to provide you with a safe workplace.
In addition, if you were injured on or after 15 October 2013, you need to have sustained a degree of permanent impairment of more than 5%.
You should obtain advice from your lawyer in relation to any potential common law entitlement.
What is the common law process?
1. WorkCover and the employer are served with a document called a Notice of Claim for Damages. This is a document usually prepared your lawyer. It contains information about you, your injuries, why they think the employer was responsible for the injury and an offer of settlement.
2. Once the Notice of Claim has been served, WorkCover contact the employer to obtain any information that may assist WorkCover to make an assessment of the prospects of success of the claim and the likely compensation payable.
3. WorkCover may engage an investigator to determine how the injury occurred. WorkCover may also obtain information from your treating doctors, previous employers or any documents relating to previous claims.
4. Copies of all relevant documents collected by WorkCover during their investigation are provided to the your lawyer.
5. Once WorkCover’s investigations are complete, WorkCover will advise your lawyer whether they accept liability or not, and then start informal settlement negotiations, usually by telephone or correspondence.
6. If the informal settlement negotiations do not result in a settlement of the claim, a formal settlement conference will be held. This is a face to face meeting between you and your lawyer, and WorkCover and their lawyers. A representative of the employer will be invited to attend.
7. If the claim does not resolve at the settlement conference, you will be required to issue court proceedings and proceed towards a trial.
8. Most claims resolve before or at the settlement conference.
What can be claimed?
All claims for compensation are assessed individually. Compensation paid depends on the type and severity of your injury and your particular circumstances. The compensation you are entitled to may be reduced if you were partially at fault for the accident.
You may be entitled to claim:
• Pain and suffering and loss of amenities of life;
• Past economic loss (including loss of superannuation entitlements) from the date of your injuries to the date of settlement or trial;
• Future economic loss (including anticipated loss of superannuation entitlements) from the date of settlement or trial to your anticipated retiring age;
• Out of pocket expenses like medical, hospital and similar expenses, travelling expenses, costs of special needs and an allowance for the future costs of these things; and
• Interest (on past expenses and economic loss).
You may also be able to claim other expenses depending on your individual circumstances. Discuss any questions about what you can claim with your lawyer.
You will need to show that your claim for compensation is directly related to the injuries sustained in the accident. WorkCover may obtain records and information to assess how much compensation you should receive. This could include information from your doctor, hospital or your employer or medical examination by a doctor for WorkCover.
If you have personal or compulsory work superannuation, you may be entitled to a lump sum payout or income protection type payments (in addition to any amount that you might recover from this claim). Please tell us, or find out from your employer, the name and address of your superannuation fund so that we can investigate this for you.
These are very important.
• For Statutory Benefits
If you have not already applied for workers’ compensation benefits, an Application for Workers’ Compensation must be lodged with WorkCover Queensland (with a current medical certificate confirming you are unfit for work) within 6 months from the date of your accident or the onset of symptoms.
• For Common Law Damages
A compliant Notice of Claim for Damages must be served on WorkCover Queensland within 3 years from the date of your accident. If this does not occur, your common law damages claim becomes statute barred. This means that you will lose all of your rights to recover common law damages for your injury.
Termination of Benefits from WorkCover, Medicare or Centrelink
If your damages included future medical expenses, you may not be able to claim any benefits from Medicare for those expenses until you have spent the money on them.
If you have received benefits from Centrelink, then any damages you receive might affect your future entitlement to receive benefits as well as any refund which you may have to pay. There may be a period after you receive your compensation during which you cannot receive benefits from Centrelink.
As well as having to tell Centrelink about your compensation you also have to tell them about any change in your assets from time to time. This means that you will have to tell Centrelink about the net amount of damages you receive after payment of all refunds and legal bills.
Any damages you may receive are free of taxes, but if you invest your money you may have to pay tax on the income you get from that.
Keeping a Record
Your case may take a while to finish, so it is important to keep all of your records relating to it. You should record your visits to hospitals, doctors and such things as the pain you are experiencing, loss of sleep, frequency and severity of symptoms, medication taken and the limitations generally on you and your family's life, especially any work restrictions that you have or might have in the future as a result of your injuries.
You should also keep any accounts, invoices and receipts relating to expenses from your injuries in relation to the accident. If you do not do this you may not be able to claim them later as part of your case.
Please keep a record of your medical treatment, pharmaceutical, medical and travelling expenses.Please keep all of your records and make sure you bring the records with you when we get together to assess your claim.
NEED FOR LEGAL ADVICE
You need a lawyer acting for you to maximise the amount of your compensation. Common law claim are very complex and you should engage an expert personal injury lawyer to represent you in your claim.
GC Law is a no win no fee law firm, and we are always up front about the costs associated with commencing a claim for compensation.
No Win No Fee means that we will pay for all outlays involved with pursuing your claim (such as medical reports, barrister fees, court filing fees, mediators fees etc.) but we will not render an account for professional fees or outlays unless you win and receive compensation for your injuries.
No personal injury lawyer can say exactly what the costs of a compensation claim will be before it has taken place. This is because no lawyer can predict how the other parties may respond and how much work will be involved.
But you can be assured that we keep our fees to a minimum so that you get all the compensation you are entitled to.
The best way to start your claim is to use , this allows us to assess your case and respond to you accordingly.
We can then advise on all matters that may affect your claim and commence the process of claiming compensation on your behalf for any injury sustained in the case of your employment.
Before engaging a solicitor you should discuss legal fees and how much you may be charged.
For further information on legal advice contact the Queensland Law Society.
How Long Will it Take for My Claim to Settle?
It's very important, early in the process of beginning a claim, to understand that if you have been injured you only have "one shot" at making a claim.
Whenever we finalise your claim, it is on a "once and for all basis". It is virtually impossible for GC Law to re-open a completed claim for compensation. Even if the injury you sustained has worsened or has not recovered the way your doctors thought it would.
From our point of view, when trying to accurately assess a claim, we prefer that your treatment has concluded. The financial cost of treatment is high and there is always some guesswork in anticipating the cost of your future medical treatment after the accident. We also need to understand whether you have made a recovery from the effects of the injuries or whether you will be left with a permanent residual disability.
We'll find a balance between not dragging out your claim any longer than is necessary, and putting ourselves in the position where we can accurately assess your full compensation entitlements.
This is why the Free Case Review is a very important first step. We need to get all the facts surrounding your accident.
In general, your claim will likely conclude when you have finalised your treatment and been assessed by doctors for any ongoing permanent impairment.
For the best way to find out what you are entitled to contact GC Law as soon as possible after the accident, so we can assist you in preparing your claim to achieve the best outcome.