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Workplace Injuries

WorkCover scheme

To obtain WorkCover benefits including weekly payments for time off work and payment of your medical expenses, you must be a worker and have suffered an injury, as those terms are defined in the WorkCover Act.

A "worker" is someone on PAYE wages and in most cases since 1/7/2000, a person paid on contract rates who supplies no more than labour and hand tools. A genuine sub-contractor does not come under the WorkCover system.

If you do not meet the two criteria (being a worker and suffering an injury) you will be denied benefits. You may have appeal rights. You also may be entitled to bring a claim for damages outside the WorkCover system.

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Statutory benefits

If you are a worker who suffers an injury you are entitled to statutory benefits including:

• Weekly payments for time off work;
• Payment of medical expenses; and
• A possible lump sum for any permanent impairment if the accident happened at work or travelling to or from work.

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Labour hire agencies

Persons injured while employed by a labour hire agency and working for one of the agencies' customers (the "host employer") are covered for WorkCover statutory benefits.

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WorkCover - Lump sums and damages

If a WorkCover claim has been lodged on your behalf and accepted WorkCover will pay for your time off work (if that is not being paid by your employer) plus medical expenses.

They may also offer you a lump sum payment once your injuries have stabilised (usually about 9-15 months post injury). These benefits are called statutory benefits. You need not prove fault to claim these benefits. The offer of a lump sum depends on the level of your work related impairment (WRI) which is assessed medically and depends on the nature and extent of your injury.

As an alternative to any lump sum which WorkCover may offer you, you may elect to sue your employer's insurer for negligence and claim damages (in some cases you may actually be able to do both). To succeed in a damages claim you must be able to establish that your injury was due to a fault in the workplace (i.e. negligence) and you must satisfy other specific liability criteria.

See also: Hoops and hurdles ↓

In most cases, the amount of damages which flows from this type of claim is far greater than the lump sum which WorkCover may offer you under the statutory benefits scheme.

If your WRI is less than 20% you cannot accept the lump sum and sue for damages. You must choose one or the other.

Please note that any amounts paid by WorkCover to you or on your behalf are refundable out of any court award.

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Claims outside WorkCover

The WorkCover system is complex and many variables apply in considering whether it is more favourable for a claimant to attempt to bring a damages claim under WorkCover or outside WorkCover.

The following are situations where claims outside the WorkCover system can occur:

• Genuine sub-contractors are outside WorkCover. They get no statutory benefits and any claim for damages is treated as a public liability claim. See also: Public Liability
• If you work for a labour hire agency you are entitled to statutory benefits but a damages claim is usually made as a public liability claim against the host employer. See all: Public Liability
• If you are injured by the negligence of another organisation working at the same place, you are entitled to statutory benefits but a damages claim may be possible against that other organisation for their negligence.
• If you are injured by faulty equipment, a claim for negligence or breach of warranty may possibly be made against the supplier of the equipment for the injury sustained. See also: Defective Products
• If WorkCover says that your disability is not any injury then a damages claim may possible be able to be made as a public liability claim. See also: Public Liability

There are potential advantages and disadvantages of being outside the WorkCover system that need to be considered and evaluated depending on the facts of each individual case.

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Hoops and hurdles - Liability issues in damages claims

The WorkCover Act clearly favours employers and disadvantages employees by making it difficult to obtain fair compensation for injury and by protecting employers interests.

The matters that you must prove to establish any entitlement to damages are as follows:

• That the employer had made no genuine and reasonable attempt to put in place an appropriate system of work to guard the workers against injury arising out of events that were reasonably readily foreseeable;
• That the actual and direct event giving rise to your injury was actually a foreseen or reasonably readily foreseeable by the employer. If you can not prove both of these matters your claim will fail.

If you can not prove both of these matters your claim will fail.

You will have your damages reduced for contributing to the injury (contributory negligence) if it is proven that:

• You knew or had reasonable means of knowing that the actual and direct event giving rise to the injury might happen;
• Your injury arose out of your failure to inform the employer of the possibility of the event giving rise to the injury happening, in circumstances in which the employer neither knew nor reasonably had the means of knowing of the possibility;
• You did not do everything reasonably possible to avoid sustaining the injury;
• That the event giving rise to the injury was solely as a result of inattention, momentary or otherwise, on your part;
• That the injury sustained by you arose out of failure to use all the protective clothing and equipment provided;
• That you did failed to inform the employer of any unsafe plant or equipment as soon as practicable;
• That you inappropriately interfered with or misused or failed to use anything provided that was designed to reduce exposure to risk of injury.

An employer is not liable for damages because he failed to guard against your breach of instructions.

A court must make a 25% reduction in your damages for contributory negligence for each of the following:

• If you failed to comply, so far as was practicable, with instructions for the health and safety (unless you can prove that the failure did not cause or contribute to the worker's injury);
• If you failed to use protective clothing and equipment provided in a way in which the worker had been properly instructed to use them (unless you can prove that the failure did not cause or contribute to the injury;
• If you failed to use anything provided that was designed to reduce exposure to risk of injury (unless you can prove that the failure did not cause or contribute to the injury;
• If you inappropriately interfered with or misused something provided that was designed to reduce exposure to risk of injury;
• If you were at the relevant time adversely affected by the intentional consumption of alcohol, a drug or medication unless you can prove that the adverse effect did not cause or contribute to the worker's injury);
• If you failed without reasonable excuse to attend on more than one occasion any safety training course that is conducted during normal working hours at which the information given would probably have enabled you to avoid, or minimise the effects of, the event giving rise to the injury.

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Timetable

There are many procedural issues which must be complied with before you have the right to sue.

After receiving a notice of assessment from WorkCover you must make the election between accepting the lump sum or suing for damages.

If it is determined you should sue, then a certificate from WorkCover must be obtained setting out your WRI. It is then necessary to complete a detailed Notice of Claim and thereafter proceed to a Settlement Conference with WorkCover. A Court claim cannot commence until after all these steps have been taken.

A typical time line for a WorkCover claim is as follows:

Weekly benefits commence		2-4 weeks post injury
Request for permanent injury assessment		In accordance with injury recovery
Medical examination by WorkCover specialist		1-2 months following request
Offer of lump sum/WRI assessment		1-2 months following examination
Medical assessment tribunal hearing (if WRI assessment offer rejected)		Approx 2 months following rejection
WorkCover issues damages certificate		1-2 months following assessment
Claimant to decide to accept, defer or reject		1 month
Lodge notice of claim for damages		2-3 months from issue of Damages Certificate
WorkCover decision on liability and offer		6-9 months following Notice of Claim
Compulsory conference		1-3 months from WorkCover decision
Issue lawsuit		Within 30 days of compulsory conference
Trial		9-18 months following issue of lawsuit

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Review of WorkCover's decisions on statutory claims

You can apply for an initial review of WorkCover's decision to reject your application or terminate, suspend or decrease a weekly payment

An application for internal review must be lodged within 28 days of your receiving written notice of the decision. Q-Comp must then review the decision and give written notice of the review decision and the reasons for it within 14 days of making it.

If you are not satisfied with the outcome of the review you may ask that Q-Comp's review decision be decided by an Industrial Magistrate.

Finally, you can appeal to the Industrial Court. WorkCover may also appeal against the Magistrate's decision.

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Medical assessment tribunal hearings

Your statutory compensation claim may be referred to one of WorkCover's Assessment Tribunals for hearing.

The Tribunal comprises 3 specialists from the medical field relevant to your injury. The Tribunal will assess your claim on a medical basis, and make decisions about your claim in accordance with the WorkCover Act.

The decision of the Tribunal is final, except in limited circumstances where you can produce fresh medical evidence.

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