Workplace Injury, Workcover, & Common Law Claims

Your employer has a duty to provide all workers with safe systems of work and to ensure the health and safety of all employees at work is protected. Your employer may also be responsible for the negligent actions of co-workers which cause you injury.

Workplace injury law and understanding your entitlements and navigating the complex Workers’ Compensation and Rehabilitation Act 2003 (Qld) can be challenging. It is important to understand how the workers compensation system works in Queensland to ensure that you are not taken advantage of by your employer or the workers’ compensation insurer.

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How Workers Compensation Works in Queensland

In Queensland, if you have suffered a workplace injury, the Workers Compensation and Rehabilitation Act (2003) requires that you must first make a statutory workers compensation claim before you are entitled to make a further claim for damages through the court system. This second claim is known as a common law claim.

A statutory claim helps cover lost wages and get you back on your feet, whereas a common law claim seeks damages for negligence of your employer/co-workers that may impact you for the rest of your life.

Damages available through a common law claim are vastly more significant than any offer of compensation made to you by Workcover in a statutory claim. The difference between the two types of claims is often of hundreds of thousands of dollars.

Accepting an initial lump sum offer of compensation from Workcover at the conclusion of the statutory claim phase instead of proceeding to make a common law claim could be the biggest mistake an injured person makes in their life. See our blog for real life examples of the differences between pay outs.

It pays to make a simple phone call to one of Roche Legal’s expert Workcover lawyers for free advice as to whether you should accept a lump sum offer from Workcover or proceed with a common law claim for significantly increased compensation.

Step 1: Statutory Workers’ Compensation Claim

The first step in a work injury claim is to make a statutory claim for workers’ compensation by completing a simple claim form. Claims are usually made through the most common workplace injury insurer in Queensland, Workcover Queensland. This is the claim process that a lot of Queenslanders unfortunately find themselves reasonably familiar with.

You do not have to prove that anyone else was at fault for your injuries. You simply must be able to show that:

• you are injured; and
• your job was a significant contributing factor to your injury (this means a large part of the cause of the injury).

Typically, injured workers are able to complete this step without the assistance of a lawyer by simply reporting the injury to their employer, Workcover, and their doctor. A workers compensation medical certificate is required from your doctor to confirm the injury or injuries.

You statutory Workcover claim must be made within 6 months of the injury occurring.

Read our step by step guide to making a statutory Workcover claim.

Rehabilitation Funding

Once Workcover accepts your statutory claim, you will be paid benefits (in the form of weekly payments) whilst you recover and undergo rehabilitation for your specific injuries. The benefits typically include compensation for lost wages and funding for your medical treatment and rehabilitation costs.

Remember, Workcover will only provide you with rehabilitation for the work-related injuries which they are aware about. You need to tell Workcover about all of your injuries to be provided with rehabilitation. For example, if you tripped over at work and suffered a serious knee injury, it is common to develop a psychological injury several months later. It may seem obvious that you require counselling to help you learn to adapt to your new circumstances, however Workcover will not provide you with funding for this unless you specifically request it. Similarly, if you injured your back in a work accident, it is possible to have severely injured your lower back (lumbar spine) but only moderately injured your neck (cervical spine). Because most injured people tend to focus on their main injury (such as the severe lower back pain) it is common for Workcover not to know about the neck pain and therefore let it go untreated.

Closure Of Your Workcover Claim And Your Notice Of Assessment

Workcover will eventually reduce your weekly payments as you complete your rehabilitation and reach your point of maximum medical improvement. Around this time, Workcover may require you to attend an Independent Medical Examination (IME) to confirm that no further treatment would benefit your recovery from your injuries. If the IME confirms that no further treatment is necessary, Workcover will either:

• close your claim as you’re able to fully recover and return to the workforce; or
• if you continue to suffer pain and disability, issue you with a Notice of Assessment.

If Workcover closes your claim without issuing you with a Notice of Assessment, you are entitled to ask for one.

Your Notice of Assessment will include a percentage score from 0-100% which grades the severity of your injuries. This is known as your Degree of Permanent Impairment (DPI). If your impairment score is:

• 0% – Workcover will close your claim without offering you any lump sum compensation amount;
• greater than 0% but less than 20% – Workcover will make you an offer of lump sum compensation and you need to make an irrevocable decision as to whether to accept the lump sum offer or proceed to a make a common law claim;
• greater than 20% – you can accept the lump sum offer and proceed to a common law claim as well.

If you have been issued a Notice of Assessment and your degree of permanent impairment is assessed to be between 0% – 20%, it is critical that you don’t accept any offer of lump sum compensation before speaking to a lawyer first – if you accept it, you will be prevented from making a common law claim. By ignoring or rejecting the offer, you can instead make a common law claim for a much larger lump sum compensation pay out.

See more: Workcover Lump Sum Permanent Impairment Payment Amounts – 2023

Step 2: Common Law Claim

A common law claim is where the worker seeks damages through the courts. The benefit of taking your claim through the court process is that you are entitled to claim for larger amounts than provided for in statutory claims.

An injured worker cannot commence a common law claim for negligence against their employer until Step 1 (above) is completed and a Notice of Assessment of permanent impairment is issued.

The injured worker must also be able to prove that:

• they are injured;
• their job was a significant contributing factor to the injury (i.e. a large part of the cause of the injury); and
• their co-worker’s or employer’s negligence caused or contributed to the injury (i.e. the employer breached their duty of care).

Sometimes injured workers feel like their injuries occurred due to their own fault and don’t fully consider how their employer could have prevented the injury. However, an experienced workplace injury lawyer is often able to help identify failings of the employer to hold them liable for the injuries.

The Work Health and Safety Act 2011 (Qld) sets out requirements for employers to protect the health, safety and welfare of workers and other people in a place of work. It is common for employers to fail in their duty to keep their employees and workers safe at work which often unfortunately results in someone sustaining a workplace injury.

A personal injury lawyer is often able to assist you in determining whether your employer may be held liable for your injuries and guide you through the common law claim process.

Strict time limits apply to making a common law claim and the process is complicated. Roche Legal are experienced workers compensation lawyers who represent injured Queenslanders on a No Win No Fee basis. We offer free initial consultations over the phone and can advise you immediately of your prospects of making a successful common law claim.

Frequently Asked Questions

Will you run my Workers Compensation claim on a No Win No Fee basis?

Yes. Roche Legal’s expert workers compensation lawyers offer No Win No Fee representation to everyone with a qualifying common law claim for a workplace injury. Contact us for a free initial consultation. We have offices in Brisbane, Springwood, and the Sunshine Coast.

What should I do if I have been injured at work?

To make a successful claim, it’s important to do three things immediately:

1. Report your injury to your employer immediately.
2. Visit a qualified medical practitioner as soon as possible. You’ll need medical evidence to prove your injury is work related.
3. Lodge a claim with your employer’s insurer – this is usually Workcover Queensland.

You should obtain legal advice before signing any documentation from Workcover, otherwise you might lose your right to claim damages. ROCHE Legal will guide you through the Workcover legal process and carefully explain the options available to you.

Read our blog post for more details on what to do after a workplace accident.

Do I have a claim for workers compensation?

Persons who suffer injuries from accidents at work might be eligible to make a compensation claim.

In Queensland, the Workers’ Compensation and Rehabilitation Act 2003 (Qld) requires all employers to hold insurance for each worker/employee to cover the event that someone suffers an injury and makes a claim for damages. This means that claims are usually against the largest workers’ compensation insurer, Workcover Queensland rather than your employer directly.

If you have been injured at work, you will be entitled to workers compensation under the statutory scheme irrespective of whose fault it was. In addition, you may be able to file a common law claim if you can show fault on the employer’s part.

You may also be entitled to statutory workers’ compensation if you were injured travelling to or from work, but making a common law claim is less likely. Depending on the circumstances, you might also be entitled to additional compensation through CTP insurance if a vehicle was involved.

You may also be entitled to workers compensation if you were travelling because of work e.g., between worksites.

Who can I bring the workers’ compensation claim against?

When you get injured at work, you must first bring your claim to the workplace insurer – this is usually Workcover Queensland. This is known as a statutory workers compensation claim.

Once your statutory claim ends, you can bring a further common law claim for damages which is made against your employer. The workplace insurer will still be responsible for paying you compensation if you are successful with your common law claim.

If you were injured at the premises of another company, you may also have a public liability claim to make in addition to your workers compensation claim.

If you were seriously injured, you may also be able to make a TPD claim in addition to your common law claim.

How do I know if my employer has workers compensation insurance?

All employers in Queensland are required by law to have workers’ compensation insurance. The most common insurer for workplace accidents is Workcover Queensland.

What can I claim compensation for?

Statutory Workers Compensation claims:

May include a lump sum for permanent impairment, and weekly payments for lost wages (usually up to 85% of your ordinary wage), medical treatment and rehabilitation costs, and return to work services (such as retraining).

Common law claims:

If the injury was not your fault, you may be able to claim compensation for:

• Pain and suffering
• Loss of past income
• Loss of future income / earning capacity
• Medical, hospital and rehabilitation expenses
• Future expenses relating to your injury
• Travelling expenses
• Cost of return-to-work services

What has to be proven for my Workers Compensation claim to be successful?

For a Statutory Workers Compensation Claim – You have to prove that:

• you were employed at the time of the injury by the employer; and
• you were a ‘worker’ in the legal sense; and
• the accident happened because of or during the course of your employment but not whose fault it was; and
• you suffered an injury or illness as a consequence; and
• your claim was made within the time limits.

For a Common Law Claim – You have to prove that:

• the accident happened; and
• your employer was at fault or breached their duty of care; and
• you suffered an injury or illness as a consequence; and
• your claim was made within the time limits.

What is a ‘Duty of Care’ and how is a breach of this duty defined at common law?

Duty of Care

It is well recognised at common law that an employer owes an employee a duty of care.

Breach of Duty

Section 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) states when an employer will be found to have breached its duty of care.

305B General principles

(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.

(2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)—

(a) the probability that the injury would occur if care were not taken;

(b) the likely seriousness of the injury;

(c) the burden of taking precautions to avoid the risk of injury.

Causation

Even if it can be established that your employer breached their duty of care to you, it is necessary to establish that the breach of duty caused your injury.  In this regard, section 305D states:

 305D General principles

(1) A decision that a breach of duty caused particular injury comprises the following elements—

(a) the breach of duty was a necessary condition of the occurrence of the injury (factual causation);

(b) it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (scope of liability).

(2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party in breach.

(3) If it is relevant to deciding factual causation to decide what the worker who sustained an injury would have done if the person who was in breach of the duty had not been so in breach—

(a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and

(b) any statement made by the worker after suffering the injury about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty.

Are there any important time limits to commencing a Workers Compensation claim?

For a Statutory Workers’ Compensation Claim – In Queensland usually you have:

• 30 days to notify your employer of your injury.
• 6 months to lodge a statutory workers compensation claim.
• If you have been on workers’ compensation and then referred by the insurer to attend an independent medical examination – you will soon be given a Notice of Assessment with an offer of a lump sum by way of compensation. You have 20 business days from the date of receipt of the Notice of Assessment to accept or reject the offer. However, if you take no action, the offer is simply deferred. We recommend that you take no action until you talk to a personal injury lawyer first. This is because if you defer or reject the offer, you are able to make a claim for more significant common law damages through the court provided you can prove the accident was the employer’s fault.

For a Common Law Claim – In Queensland, you need to make a claim within:

• 3 years from the date of the accident; or
• 6 months of receiving the Notice of Assessment from the insurer.

Who pays me the compensation?

Your employer’s insurance company (usually Workcover Queensland – but not always) pays your compensation if your claim is successful, regardless of whether you have a statutory claim or common law claim.

How much compensation can I claim?

This depends upon your individual circumstances. At ROCHE Legal we seek the maximum amount of compensation available for your situation.

From experience, making a winning common law claim usually results in receiving more than 10x the original lump sum offer of compensation made by Workcover at the end of a statutory claim.

If you are represented on a no win no fee basis, your legal costs such as solicitor fees, disbursements and court costs are then deducted from the compensation payment you receive.

How long does a common law workers compensation claim take?

By law, parties are required to participate in a compulsory settlement conference within 9 months of serving a compliant common law claim on the worker’s employer and their insurer. Your matter has the potential to be resolved at this point if the insurer is prepared to offer an appropriate settlement.

If the amount offered is not fair and you deserve more, the team at ROCHE Legal will advise you. The next step would be to proceed through the court system towards a trial. Most claims do not require a trial and are able to be settled within 9 months. If your matter does require a trial, we endeavour to have the matter concluded within 2 years.

How do I obtain my Workcover File?

Due to the complex nature of common law claims for work injuries, the first step to making a common law claim is to consult a lawyer as soon as possible. During the first consultation, your lawyer will:

• ask you a series of questions to evaluate your prospects of making a successful claim;
• advise you of any urgent steps that need to be taken to protect your time limits to bringing your claim; and
• provide you with an authority document for your signature to give your lawyer access to your complete Workcover file.

Obtaining Your Workcover File

Workcover keeps a written record of your entire Workcover claim which includes:

• a Communications Report – a log of all telephone communication between Workcover and yourself, your employer, your doctors, and anyone else they speak to in relation to your claim
• a Payment History Report – a summary of all expenditure Workcover has paid in relation to your claim, such as weekly compensation payments to you, payments to the hospital and doctors for surgery and treatment, and payments in relation to your rehabilitation.
• all inbound and outbound written correspondence – including emails to you, reports to and from your doctors, and independent medical examination reports.

Workcover will not provide you with a complete copy of your file (even if you ask for it), however they may provide you with some select documents. However, when a lawyer requests your complete file, Workcover are obliged to provide it in full. Once your lawyer has received your complete Workcover file, they will be able to determine whether your injuries have been appropriately managed and whether you require further treatment before your statutory Workers Compensation Claim comes to an end.

Will my employer sack me if I make a Workers Compensation claim?

Employers are not usually prepared to terminate your employment following a workplace accident as there are laws in place to ensure this does not happen. However, not all employers follow the rules. Plus, your employer may not keep your job open if you cannot perform the required duties anymore due to your injuries or illness.

Can I make a Workers Compensation claim on behalf of the injured person if they have passed away (or if they died at work)?

Yes – the law allows for a dependency claim to be made in the event of death. These claims can be made by anyone who financially depended on the deceased – typically their spouse and children.

We can also help you determine if there are any death benefits provided for in the deceased’s superannuation fund and in the event the deceased had any private life insurance cover.