Ask most people what happens after a workplace injury and they will describe the statutory claim: WorkCover pays your wages and your treatment until you are back at work. That is right, and for many injuries it is the whole story. But the Workers' Compensation and Rehabilitation Act contains a second, separate claim that is available when the employer was at fault, that is usually worth several times the statutory benefits, and that is easy to lose by accident.

Key points

  • The statutory claim is no-fault and pays weekly compensation, treatment and an impairment lump sum; the damages claim needs employer negligence and covers full loss.
  • If your permanent impairment is under 20 per cent, accepting the lump sum ends the right to claim damages; at 20 per cent or more you can do both.
  • The damages claim must be started within three years of the injury, and the statutory claim can take much of that time.

The statutory claim

This is the no-fault layer. If you are a worker and you were injured in the course of your work, WorkCover Queensland (or your employer's self-insurer) pays:

  • weekly compensation while you cannot work, at 85 per cent of your normal weekly earnings for the first 26 weeks and a lower rate after that, for up to five years;
  • medical, hospital, pharmaceutical and rehabilitation expenses, and travel to treatment;
  • once the injury has stabilised, a lump sum for permanent impairment, calculated from your assessed degree of permanent impairment (DPI) under the regulation.

It does not matter who was at fault. It does not require a lawyer to lodge. And it does not compensate you for the injury itself, for pain and suffering, or for the income you will lose over the rest of your working life if you cannot return to your old job.

The common law damages claim

This is the fault-based layer. If the injury was caused by the negligence of your employer, or of someone the employer is responsible for, you can claim damages: compensation for the full loss the injury has caused you, assessed the way a court would assess it. That includes past and future economic loss with superannuation, future treatment, and general damages for the injury, less anything WorkCover has already paid, which is refunded from the settlement.

Negligence means the employer failed to take reasonable care for your safety: an unsafe system of work, a hazard that was known and not fixed, a lack of training or supervision, inadequate equipment, or the carelessness of a co-worker. Queensland employers carry a high duty of care, and many injuries that look like "just an accident" are, on examination, failures of the system.

How the two interact

The damages claim cannot be started until the statutory claim has produced a Notice of Assessment of your permanent impairment. When that notice arrives, it comes with a lump sum offer, and here is the trap: if your DPI is less than 20 per cent, accepting the lump sum ends your right to claim damages. You must choose. If your DPI is 20 per cent or more, you may accept the lump sum and still claim damages.

The notice gives you 20 business days to respond, after which the offer is treated as deferred, not lost. But people receive it, see a five-figure sum, and sign, without knowing that the damages claim they have just given up might have been worth ten times as much.

The deadlines

Statutory claim: six months from the injury to lodge. Damages claim: three years from the injury to start court proceedings, and the pre-court process (Notice of Claim for Damages, the insurer's liability response, compulsory conference) has to be completed inside that. Because the statutory claim can run for a year or more before the Notice of Assessment issues, the three years can be closer than it looks when the lump sum offer arrives.

What to do

Get advice from WorkCover lawyers in Brisbane at the first sign that the injury is serious, not when the Notice of Assessment arrives. Never sign a lump sum offer without advice. And if the limitation period is close, ask about an urgent Notice of Claim for Damages, which can protect the claim while the statutory process finishes.

Frequently asked questions

Can I sue my employer for a workplace injury in Queensland? Yes, where the employer or someone it is responsible for was negligent. The claim follows the statutory claim and a Notice of Assessment, and must be started within three years of the injury.

What is the difference between a WorkCover claim and a common law claim? The WorkCover statutory claim is no-fault and pays defined benefits. A common law claim requires negligence and compensates the full loss, including future income and the injury itself, less what WorkCover has paid.

Should I accept the WorkCover lump sum? Not without advice if your employer may have been at fault and your impairment is under 20 per cent, because accepting ends the damages claim.

Sources

  • Workers' Compensation and Rehabilitation Act 2003 (Qld), Chapter 3 (statutory compensation), ss 179–189 (permanent impairment and Notice of Assessment), 189 (election where DPI is less than 20%), Chapter 5 (access to damages), ss 275 (Notice of Claim for Damages), 302 (limitation) — legislation.qld.gov.au
  • WorkSafe Queensland, Lump sum payments (the 20% threshold and the 20 business day response) — worksafe.qld.gov.au
  • WorkSafe Queensland, Making a common law claim — worksafe.qld.gov.au
  • WorkCover Queensland, Weekly payments and compensation — workcoverqld.com.au