Protecting your workers’ compensation rights

If you have been injured at work or have developed a work-related illness, it is important to act quickly and take appropriate steps to protect your legal rights.

No matter how minor you think your injury is, a basic understanding of the laws that protect workers, and the relevant timeframes for pursuing compensation is essential.

Although some injuries may seem insignificant when they happen, they can deteriorate over the course of days, weeks or months, affecting your capacity to work and provide for your family. Workers should not be deterred by offhand comments, pressure or threats, from pursuing their rights to access appropriate treatment and to be fairly compensated for a workplace injury.

Many people do not realise that the responsibility for seeking compensation rests with the injured worker and that failure to lodge a claim, no matter how seemingly incidental, can have significant repercussions on the ability to pursue their rightful entitlements.

Understanding workers compensation

Workers compensation laws exist for very good reason – they set out the rights and responsibilities of workers and employers, and support those who are injured, aggravate an existing injury or become ill while performing their usual work duties.

The Workers’ Compensation and Rehabilitation Act 2003 (Qld) establishes a no-fault compensation scheme which provides statutory minimum ‘safety net’ benefits to injured workers or the families of those who die from a workplace incident.

Employers must provide a safe workplace and work systems, and ensure that employees, whether full-time, part-time or casual are covered by workers compensation insurance. In some cases, ‘deemed’ workers such as contractors and self-employed workers, will also be covered.

Employers must report certain workplace injuries and cooperate with relevant bodies and providers to facilitate optimum recovery for an injured worker. Attempts to avoid these obligations, discourage or prevent an employee from following the correct processes for making a legitimate claim may breach these laws.

The role of WorkCover

WorkCover Queensland is established under the Act and provides workers compensation insurance for all Queensland employers, unless an employer is a self-insurer.

WorkCover processes workers compensation claims, makes payments to injured workers in accordance with their entitlements, oversees injury management and coordinates return to work plans.

Understanding time limits and making a claim

A worker, not the employer, is responsible for lodging a workers’ compensation claim. The following timeframes apply and may only be waived in specific and exceptional circumstances.

• Workers should report the incident and their injuries to the employer as soon as possible after the injury occurs and before making a claim.

A worker may complete an incident report or notification of injury, however he or she should be clear that this is not an application for workers compensation.

• An application for workers compensation must be lodged by an injured worker with WorkCover. The application is generally only valid if lodged no later than six months after the entitlement to compensation arises.

 The Act states that an entitlement to compensation arises on the day a worker is assessed by a doctor, a dentist (if the injury is an oral injury) or a nurse if the injury is minor. Injured workers should seek medical assistance as soon as possible after they are injured to obtain a work capacity certificate.

• If an application is lodged more than 20 business days after the entitlement to compensation arises, the insurer does not have to pay compensation from a date any earlier than 20 business days before lodgement of the claim.

This means that the insurer will not have to ‘back-date’ any compensation payments for more than 20 business days before the claim was lodged.

What does WorkCover pay?

 A workplace injury or illness may include physical or psychological injuries. Because the scheme is no-fault, provided the injury is work-related, compensation is generally payable even if the injury was not the employer’s fault.

Compensation may include any one or more of the following payments:

• weekly payments during incapacity;
• expenses for medical treatment by providers such as doctors, dentists, physiotherapists, occupational therapists and psychologists;
• assessments for industrial deafness and diagnostic processes;
• the provision of nursing, medical or surgical supplies and equipment;
• travel expenses reasonably incurred in attending treatment, medical examinations and medical assessment tribunals;
• lump sum benefits for certain injuries that result in permanent impairment;
• return to work support when an injured worker cannot resume his or her pre-injury role but may be suitable for other employment;
• death benefits for certain family members of a worker who dies from a work-related injury or illness, as well as funeral benefits.

Pursuing a common law claim for damages

A common law damages claim may be made by an injured worker if the employer (either directly or through another employee or agent) was negligent and deemed responsible for the injury. The claim must be commenced within three years of the date of injury.

Generally, a damages claim cannot be made until an injured worker has pursued his or her compensation rights through the no-fault statutory scheme. Accordingly, failure to lodge a claim with WorkCover within the prescribed timeframe can adversely affect a worker’s right to pursue a common law claim for damages.

A settlement or award for work injury damages usually includes a lump sum payment (accounting for future economic loss and pain and suffering), medical and hospital costs.

Other benefits including help for non-work-related accidents and illnesses

Workers who need to take extended leave due to an illness or injury may be able to claim income protection insurance, even if their condition is not work related. Income protection covers a portion (usually up to 75%) of a person’s usual income if they are unable to work due to certain illnesses or injuries. This type of insurance may be stand-alone, or form part of a superannuation policy, and many people are unaware that they even have such insurance.

Many superannuation policies provide lump sum benefits if a person is totally and permanently disabled. These payments are generally in addition to any relevant workers compensation payments.

Claiming under an income protection policy or superannuation fund can be complex and often involves jumping through ‘hoops’ to substantiate that the condition suffered falls within a category covered by the policy.

Navigating legal terms and conditions can be distressing, particularly when dealing with the physical and emotional effects of a serious illness or injury. A lawyer can help to analyse fine print, lodge a claim and supporting documents, and assist in resolving any disputes with superannuation funds and insurers.

Conclusion

Employers have a range of workplace health and safety responsibilities however the onus rests on injured workers to ensure their compensation rights are properly pursued and protected.

Obtaining legal advice early will help you to understand and manage the time limitations that apply and may make a significant difference to your entitlements.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.