COMPENSATION FOR WORKERS/EMPLOYEES
Workers are entitled to compensation if they have sustained an injury during the course of their employment, pursuant to the WorkCover Act (QLD) 1996.
The scheme provides payment of:
- Weekly benefits of 85% of weekly earnings for 26 weeks and 65% thereafter until the injury has stabilised;
- Medical, hospital, physiotherapy and like expenses;
- Rehabilitation;
- A lump sum payment for permanent impairment or disfigurement.
The employment must be the “major significant factor” causing the injury, to be eligible for workers’ compensation. Generally, only PAYE tax payers are eligible for workers compensation.
Injuries occurring on a journey to and from work are covered under the Act provided there is not a substantial delay before starting the journey or a substantial deviation from the direct-route to or from work.
PROCEDURE FOR ASSESSMENT OF LUMP SUM PAYMENT
WorkCover may decide, or a worker may ask WorkCover, to have the worker assessed to determine the percentage of disability or permanent impairment attributable to the work related injury.
Once the injury is stabilised the injury is medically assessed by a specialist and a report(s) is furnished stating the degree of permanent impairment attributable to the injury and reasons for that decision.
WorkCover will then give the worker a notice of assessment, stating the degree of permanent impairment, whether or not it is a “certificate injury” (20% whole person impairment or more) and the amount of lump sum compensation.
If the worker does not agree with the degree of permanent impairment stated in the notice of assessment, the worker must advise WorkCover within 28 days after the notice is given.
The degree of permanent impairment may then be decided only by a Medical Assessment Tribunal.
ADVANTAGES OF WORKCOVER
- All medical, hospital and rehabilitation expenses are paid without having to prove negligence on the part of the employer or any other party.
- Lump sum compensation is payable for permanent impairment or disfigurement, again, without having to prove fault.
- There are no legal costs associated with a WorkCover Claim.
- You are entitled to a right of review or appeal of a WorkCover decision to the Magistrates Court, after an internal review occurs.
- The lump sum quantum is largely determined by a medical expert’s report from WorkCover’s panel, which may or may not be favourable to your case, however, there is no right of appeal from the decision of the Medical Assessment Tribunal.
DISADVANTAGES
- The Statutory maximum under the Act for a permanent impairment is $103,000.00.
- The amount of compensation is determined by a set of guidelines which are generally lower than that received in a common law claim for damages for personal injury.
- A lump sum assessment is processed when your injury is stabilised which is generally a shorter period than litigation.
- You are not entitled to claim for care and assistance by relatives and friends.
COMMON LAW DAMAGES
A worker may also seek common law damages, within three (3) years of the date of the injury.
Before commencing an action, the injured worker must submit a detailed claim form to WorkCover including a genuine offer to settle. WorkCover must accept or reject the offer within six (6) months of lodgement of a claim form and a compulsory conference will be convened within three (3) months. For injuries sustained after 1 January 1996 there is a distinction between:
Non Certificate injuries (Permanent impairment of 19% or lower); and
Certificate injuries (20% or more).
For “non certificate” injuries the worker must make a choice between accepting the lump sum compensation offer for their permanent impairment or pursue a common law action.
For “certificate injuries” there is no need to make an election and the worker may receive the lump sum compensation offered by WorkCover and pursue a common law action.
If the work injury is sustained before 31 December 1995 you can proceed with a WorkCover and common law claim, pursuant to the Workers’ Compensation Act (QLD) 1990.
If you have a common law claim then you should seek legal advice at an early stage.
ADVANTAGES
The main advantages of a common law claim are that:
1. A more generous sum may be awarded for pain and suffering;
2. An award is also available for other ‘heads of damage’ including:
- Travelling, pharmaceutical expenses and other out of pocket expenses.
- Home care and assistance from relatives and friends;
- Future and past economic loss;
- All current and future medical expenses (those paid by WorkCover must be repaid).
3. The successful claimant will receive a large portion of his/her legal costs if successful in the action (except for “non-certificate” injuries).
DISADVANTAGES
1. The claimant may be unsuccessful and may have a costs award made against them;
2. The defence of contributory negligence may apply;
3. Legal costs and outlays will be incurred.
For more information, please contact Mr Joseph O’Hare on (07) 3266 8999.
Please note: this brochure is designed to provide a simple overview and should not be relied upon in lieu of proper legal advice.
O’Hare Law
Solicitors
Suite 6, 82 Buckland Road
NUNDAH QLD 4012
Telephone: (07) 3266 8999
Fax: (07) 3266 3633