Workers compensation lawyers in Queensland for WorkCover claims

WorkCover claim and common law claim: the difference

Queensland runs a statutory workers’ compensation scheme alongside the ordinary common law. After a workplace incident, or a condition caused by work, you may have a claim under each. They work on different principles, and they happen in a set order.

A statutory WorkCover claim is made to WorkCover Queensland, or to your employer if it is self-insured. It is generally a no-fault claim, so you do not need to prove that anyone did anything wrong. What you do need to show is that you were a worker, that the condition arose out of or in the course of your employment, and that your employment was a significant contributing factor.

A common law claim is fault-based. It asks whether your employer, or someone else, failed to take reasonable care, and whether that failure caused your condition. It can compensate things the statutory scheme does not, such as the long-term effect on your earning capacity. It is also harder to prove and takes longer.

Both claims are governed by the Workers’ Compensation and Rehabilitation Act 2003 (Qld). Many people are told about the first claim and never hear about the second.

Lodging a WorkCover claim in Queensland

The statutory claim is simpler to start than most people expect. What it needs is a doctor’s certificate, prompt notice and accurate information.

See a doctor and get a work capacity certificate. Your GP or treating specialist completes a certificate describing the condition and what work, if any, you can do. That certificate is the medical foundation of the claim, so describe every symptom and how the incident happened.

Tell your employer. Report the incident or condition to your employer as soon as you can, and keep a note of who you told and when. Employers have their own reporting obligations once they know.

Lodge the application. Applications to WorkCover Queensland can generally be made online, by phone or on the paper form. If your employer is self-insured, the application goes to it instead. You will be asked for your employment details, your earnings, what happened and the certificate.

Keep copies. Keep the certificate, the claim number, payslips and any emails about the incident. These records matter later, particularly if the claim is disputed.

WorkCover then decides whether to accept the claim. It generally has a set period in which to make that decision, and it may contact you, your employer and your doctor first.

Who counts as a worker

Whether you are a worker is decided by the legislation, not by the label on your contract. Many employees are obviously covered. Some people engaged as contractors or through labour hire arrangements are also workers for WorkCover purposes, depending on how the work is actually done and paid. A rejection on the basis that you were a contractor can be reviewed.

Psychological conditions

Psychological conditions can be compensable, but the test is narrower. Employment generally has to be the major significant contributing factor. A condition arising from reasonable management action taken in a reasonable way, such as a performance review conducted fairly, is generally excluded. These claims turn heavily on the detail of what happened and the treating doctor’s evidence.

What a WorkCover claim pays

Once a WorkCover claim in Queensland is accepted, it generally provides three kinds of benefit.

Weekly payments generally stop when you return to your usual work, when your condition stabilises and your impairment is assessed, when a statutory maximum is reached, or after five years. Weekly payments are generally reduced if you earn income from other work while on the claim.

A suitable duties or return-to-work plan is a normal part of the scheme. You are generally expected to take part in rehabilitation that is reasonable. If you think the duties offered are not within your certified capacity, raise it with your doctor and the case manager in writing.

Where the condition is terminal, different rules apply and an additional lump sum may be payable. That situation arises most often in asbestos and mesothelioma claims.

Time limits for WorkCover and common law claims

Each claim has its own time limit, and they run differently. These are the Queensland deadlines; other states and schemes differ.

A late statutory application can be accepted in some circumstances, but it is simpler not to need that.

A common law claim generally cannot go to court until you have a Notice of Assessment, with limited exceptions. You must also complete the pre-court steps in the Act. Those steps include a formal notice of claim, an exchange of information and a compulsory conference with the insurer.

Because the pre-court steps take time, a claim left close to the three-year mark can be difficult to prepare properly. For conditions that develop slowly, the relevant date can be the date of diagnosis rather than the date of exposure. Time limits for compensation claims sets these out in more detail.

The Notice of Assessment and your common law rights

When your condition stabilises, WorkCover arranges an assessment of permanent impairment. It then issues a Notice of Assessment, which states your degree of permanent impairment as a percentage and usually includes a lump sum offer. The notice sets out how long you have to respond.

This document is a decision point, not paperwork. Generally, if your assessed impairment is below 20 per cent, accepting the lump sum ends your right to bring a common law claim for that condition. You can instead decline the offer and keep the common law option open. At 20 per cent or above, accepting the lump sum does not necessarily close off a common law claim, though what you receive is generally taken into account.

Which choice suits you depends on:

• the size of the lump sum offer
• the strength of any negligence case against your employer or another party
• what the condition is likely to cost you over the rest of your working life

You can also disagree with the percentage itself. There is generally a process for having the assessment referred to a medical assessment tribunal.

When a common law claim is available

A common law claim needs more than a workplace incident. Generally, it needs evidence that:

• your employer, or another party, owed you a duty to take reasonable care
• they failed to do what was reasonable, for example by not providing a safe system of work, suitable equipment, training or supervision
• that failure caused your condition, or made it worse

The other party is not always your employer. Where a labour hire worker is placed with a host business, or a principal contractor controls a site, a claim may lie against them as well, or instead.

Damages are assessed under the Act and its regulations, including a regulated scale for general damages. They can include past and future economic loss, superannuation on lost earnings, treatment costs and some care. Amounts already paid under the statutory claim are generally taken into account.

Not every accepted WorkCover claim supports a common law claim. It is better to know that early than to find out after a lump sum has been accepted.

If your WorkCover claim is rejected

A rejected WorkCover claim can be reviewed by the Workers’ Compensation Regulator, which is independent of WorkCover. An application for review is generally made within three months of the decision. A review decision can then be appealed to the Queensland Industrial Relations Commission, and the time allowed for that appeal is much shorter.

Common reasons for rejection include:

• a dispute about whether employment was a significant contributing factor
• a dispute about whether you were a worker or an independent contractor
• disagreement about the medical evidence, or a gap in it
• for psychological conditions, a finding that reasonable management action was the cause
• late lodgement without a reasonable explanation

A rejection is based on the material WorkCover had when it decided. The usual response is better evidence, addressed to the specific reason given. The same process generally applies if weekly payments are stopped, or if a particular treatment is refused.

How long a WorkCover claim takes

A straightforward statutory claim is often decided within weeks of lodgement. Weekly payments then continue for as long as you are certified unfit and the other limits are not reached.

A common law claim takes considerably longer. It usually cannot begin until your condition stabilises and your impairment is assessed, which may be many months after the incident. The pre-court steps then add further time. The length depends mostly on your medical recovery, not on the paperwork.

Dust diseases and conditions that develop over time

Some work-related conditions appear years or decades after the exposure that caused them. Asbestos and silica diseases are the clearest examples, and dust disease is the firm’s specialty.

For these conditions, Queensland generally has no limitation period for a court claim, and statutory lodgement periods generally run from diagnosis or assessment rather than from exposure. A person diagnosed with mesothelioma, asbestosis or silicosis may have a statutory claim, a common law claim and a TPD claim through superannuation at the same time. The asbestos and mesothelioma and silica disease pages explain how those claims work, and TPD and superannuation claims covers the insurance side.

A car accident while driving for work, or on a journey to or from work, can give rise to both a WorkCover claim and a car accident and CTP claim. An incident on premises you do not work at may instead be a public liability claim.

When to speak with a lawyer

You do not need a lawyer to lodge most WorkCover applications. Advice from a lawyer is most useful at these points:

• your claim has been rejected, or weekly payments have stopped
• a Notice of Assessment has arrived with a lump sum offer
• the condition is serious, psychological or likely to affect your working life
• you think your employer or another party could have prevented what happened
• you are unsure whether you are a worker, or whether a journey is covered
• you are considering resigning, or have been dismissed

Each of those involves either a short time limit or a choice that can close off a later claim.

How the firm runs these claims

The firm acts for workers, not insurers. The solicitor who takes your first call is the solicitor who runs your claim, and you will have their direct mobile and email. The firm keeps a deliberately low solicitor-to-client ratio so that stays true for the life of the matter. Martin Rogalski, the firm’s principal, is a Queensland Law Society Accredited Specialist.

Every claim is run no win, no fee*. Legal costs can often be claimed in addition to the compensation recovered, and interest is only charged on unpaid legal costs, which is rare in practice. Disbursements, such as medical reports and court fees, are a separate cost. They are explained in writing before anything is agreed. The firm does not use litigation funders.

The firm will act on smaller claims, but on a very small claim the costs of running it can outweigh the benefit to you. A first conversation will usually tell you whether yours is worth taking further. It costs nothing and commits you to nothing, and enquiries are generally returned the same business day. You can request a free case review online or call 1300 848 424.