Queensland Statutory Workers’ Compensation Claims and Common Law Claims for Damages

by | Feb 16, 2023 | Uncategorized

Queensland Statutory Workers’ Compensation Claims and Common Law Claims for Damages
In Queensland, all employers are required to have workers compensation insurance to protect workers from injuries sustained while at work in accordance with the Workers’ Compensation & Rehabilitation Act 2003 (Qld). There are two types of workers compensation claims in Queensland that can be claimed by a worker, as follows:

      1. Statutory Claim for Workers’ Compensation; and
      2. Common Law Claim for Damages.

Statutory Claim for Workers’ Compensation
In Queensland, all statutory workers’ compensation claims are made through the injured workers’ employer’s insurer, usually either through WorkCover Queensland, who insure most employers in Queensland, or a self-insurer, as some employers are self-insured.

Can I Make a Claim for Statutory Workers’ Compensation?
The Queensland statutory workers’ compensation claim, is a no-fault scheme, meaning there is no need to prove fault on a party with respect to how your injuries occurred. If you can satisfy the following criteria, then you claim should get approved:

      1. That you were a worker at the time of sustaining your injuries;
      2. That your injuries occurred as a result of a workplace accident;
      3. You have supporting medical evidence that you sustained an injury by way of a Queensland Workers’ Compensation Medical Certificate; and
      4. That your application for workers’ compensation is lodged within 6 months of the date of accident with WorkCover or the self-insurer.

There is a separate criteria for assessing statutory workers’ compensation claims, for other types of workplace injuries, such as:

      1. Psychological and psychiatric injuries;
      2. Industrial deafness;
      3. Injuries occurred while traveling to and from work;
      4. Injuries occurred while on a scheduled work break;
      5. Aggravated injuries or ongoing symptoms;
      6. Work related respiratory diseases such as asbestosis;
      7. Death caused by a work-related event or illness such as mesothelioma.

What Workers’ Compensation Statutory Benefits will I Receive if my Application is Accepted?
If your application for statutory workers’ compensation is accepted, then you may receive compensation for:

      1. weekly benefits (wages), if you are unable to work due to your injuries;
      2. paid out-of-pocket medical expenses such as:

a) specialist appointments;

b) surgery;

c) treatment;

d) rehabilitation;

e) medications; and

f) travel.

Once your injuries are deemed stable and stationary, your statutory claim will then be finalised.

Common Law Claim for Damages
The second type of workers’ compensation claim in Queensland, that can be claimed by an injured worker, is a common law claim for damages for negligence against the employer.

What is a Common Law Claim for Damages?
A common law claim for damages can be made by an injured worker against their employer, in circumstances where:

      1. Your statutory claim for workers’ compensation benefits has been finalised and you have been issued with a Notice of Assessment;
      2. You are left with a permanent impairment for your injuries sustained in the subject accident; and
      3. You can establish that your employer was negligent for causing your injuries.

If you cannot prove that your employer was negligent for causing your injuries, then you will not be entitled to make a claim for common law damages, even in circumstances where you are left with a permanent impairment with respect to your injuries.

Time Limits for Lodging a Common Law Claim for Damages
There are strict timelines that apply in Queensland with respect to making a common law claim for damages, which is 3 years from the date of accident. If you do not lodge a claim within this time, then you will become statute barred from being able to make a claim.

There are some circumstances where you may be entitled to lodge a common law claim for damages outside of the 3 year limitation period, however you must be able to satisfy those legislative requirements. Generally, the circumstances when someone is pursuing their legal right to lodge a claim outside of the 3 year statutory time limit, is usually a very complex one. It’s best to obtain legal advice about this as soon as you become aware of your potential right to make a common law claim for damages.

How are Damages Assessed in a Common Law Claim for Damages
If you have an entitlement to pursue a common law claim for damages, then you can claim for loss will include:

      1. General damages for your pain and suffering;
      2. Past and future economic loss;
      3. Past and future loss of superannuation; and
      4. Past and future medical expenses including the cost for surgery, specialist appointments, treatment, rehabilitation, medication and travel.

Should I Make a Common Law Claim for Damages?
Making a common law claim for damages under the Workers’ Compensation & Rehabilitation Act 2003 (Qld), is a very complex legal process that can usually take 12 months or more before finalising. Instructing a personal injury lawyer that specialises in this area law is critical to ensure that your legal rights are protected.

Please contact Tully Law today on (07) 3162 9134 for an initial free case assessment, if you have been injured at work.

Written by Nikolina Tully, Legal Practice Director & Founder of Tully Law | Accident Compensation Lawyers.
Published on 16.02.2023