Have you been injured at work or on your way to or from work?

Did you know you might be able to make a claim for an injury sustained on your way to or from work, or while at work?

Or, that if you die from your injuries your family might be able to make a claim on your behalf?

If the primary income provider in your household has been injured or killed in a car accident on the way to work you might be eligible to make a claim for compensation. You might also be able to make a claim where you have experienced psychological problems as a result of your employment, or suffered an aggravation of an injury.

Workers’ Compensation is a form of compensation that you can obtain if you have been injured in the course of your employment. WorkCover Queensland is the government body to which you make application for compensation.

However, you may discover that your employer is a self-insurer. This means that your employer has obtained alternative insurance for its employees, other than through WorkCover. It is compulsory for your employer to have insurance for injuries sustained by their employees. If you are employed by a self-insurer you have the same rights as any other worker in relation to workers’ compensation. The only difference is that you make your Application for Compensation to your employer rather than to WorkCover.

If your employer is a self-insurer and you believe that a wrong decision has been made by your employer about your Application, you may ask WorkCover to review the decision. The review process will be the same as for all other workers.

If your employer does not have insurance with WorkCover nor made arrangements for similar insurance for its workers your employer has committed an offence under the WorkCover Queensland Act. You should immediately advise WorkCover if your employer is not insured.

ARE YOU ELIGIBLE?

If you are:

1. a worker as defined by the WorkCover Queensland Act ("the Act"); and
2. have suffered an injury as defined by the Act.

you are eligible for benefits under the Act.

ARE YOU A WORKER?

A "worker" is a person who:

• works under a contract of service; and
• is a pay-as-you-earn (PAYE) taxpayer.

If you are a:

• Company director
• Trustee
• Partner
• Self-employed person
• Contractor
• Commonwealth employee
• Sportsperson working under a contract of service

you are not considered a worker under the Act.

If you are injured between 1st July 1999 and 1st July 2000 and you are not a "worker", you may still apply for a lump sum payment if your injury is a serious injury. You can apply regardless of your taxpaying status, but you must be working under a contract of service, for example, an independent contractor.

If you are injured after 1st July 2000 you are a "worker" if you are working under a contract of service, regardless of your taxpaying status. This will include:

• Contractors
• Sharefarmers
• Salespersons, canvassers or collectors working partly or entirely for commission
• A person who is working under a contract of service with another person who hires out your services
• A person working under a contract of service for a labour hire agency
• A person who is working under a contract of service with a holding company

It will not include:

• Company directors
• Trustees
• Partnerships
• Commonwealth employees
• Sportspersons
• A member of a crew of a fishing vessel if your wage is dependent upon the gross earnings or profits produced by the vessel
• A person performing work under a program for unemployment
• A driving instructor who supplies and uses his/her vehicle for tuition.

Who is a PAYE taxpayer?

You are a PAYE taxpayer if your employer deducts PAYE tax from wages under the Income Tax Assessment Act.

If your employer has not made tax deductions from your pay because of:

• the length of time you have been employed by the employer; or
• the amount of money paid to you; or
• a written declaration of certificate from the Taxation Commissioner under the Income Tax Assessment Act,

you will still be considered a PAYE taxpayer.

Who is a contractor?

You are a contractor if:

• You make a contract with some one else to perform work that is not part of a trade or business you regularly carry out;
• You do not sublet the contract;
• You do not employ a worker, or if so, perform part of the work yourself.

A contractor will only be considered a "worker" after 1st July 2000.

Interstate and overseas workers

If you sustain an injury in another State, Territory or country, you may only be paid compensation if:

• your principal place of employment at the time of the injury was in Queensland;
• you had not been working in another State or country for a continuous period in excess of six months.

A worker employed in Queensland, but injured in the course of their employment in another State, Territory or country can claim in that other State, Territory or country. If your employer does not have a policy for workers compensation in that State, you may be seen as uninsured, and your employer may face prosecution. (It must be noted that in most other states a "worker" is someone employed under a contract of service regardless of whether they are a PAYE taxpayer).

The Queensland policy covers statutory benefits and common law damages claims. To claim for common law damages you need to prove that your employer or co-worker was negligent and that this negligence caused the accident and your injuries.

HAVE YOU SUFFERED AN INJURY?

Your employment must be "a significant contributing factor" causing your injury for you to be entitled to benefits. Personal injury includes:-

• a cut or fracture;
• a disease (e.g. asbestosis, Q - fever);
• an aggravation of a personal injury, disease, or a medical condition if the condition becomes a personal injury or disease because of the aggravation. This, therefore, includes an aggravation of a pre-existing condition;
• death from an injury, disease or aggravation of a disease;
• psychiatric or psychological disorder.

If your injury is psychiatric or psychological, WorkCover uses other factors to assess whether you will be compensated for your psychiatric or psychological disorder. For example, if the disorder resulted from reasonable management action being taken in a reasonable way, you are not entitled to compensation. Claims for psychiatric and psychological disorders can be very difficult to prove.

In many situations it is necessary that you have witnesses who are willing to provide statements to support of your claim. For example, if you have suffered a psychological injury as a result of stress caused by your working conditions, it is often necessary that you have witnesses who experienced or had knowledge of the stress in the workplace and can provide evidence of this situation.

Aggravation of an injury

If you sustained an injury that is an aggravation of a pre-existing condition, you may be entitled to compensation if your employment is a "significant contributing factor" causing the aggravation.

You must lodge a new Application for Compensation if an event occurs at work and you suffer a re-occurrence of a previous work-related injury or illness.

The Application may be considered as a continuation of the earlier claim if you had a previous work-related injury and there is no new event.

Industrial deafness (Hearing impairment)

If you have been employed as a worker in Queensland for at least 5 years in an industry where the noise level was a "significant contributing factor" causing loss of hearing you may be entitled to lump sum compensation for industrial deafness.

Any Application for Industrial Deafness must be made:

• while you are a "worker" under the Act; or
• "while you would usually be a worker" but you are temporarily unemployed; or
• within 12 months after formal retirement from employment.

You are not entitled to lump sum compensation for the first 5% of hearing loss. This 5% is discounted to account for the loss of hearing caused by the normal activities of life.

A further Application for Industrial Deafness can only be made more than 3 years after lodgment of a previous Application and you must prove more than 1% additional hearing loss.

Journeys to or from work

You are covered for injuries that occur on the way from home to work or from work to home. These are called journey claims. A journey starts and ends at the boundary of the land on which your home is situated.

You should note that WorkCover will not pay compensation for a journey claim if the incident causing your injury:

• is completely or partly caused by your action (drink driving or dangerous driving). You will not be covered when you are in control of a vehicle and contravene the Traffic Act if the contravention is the major significant factor causing the event;
• happens during or after a substantial delay before you start the journey;
• happens during or after a substantial interruption of, or deviation from, the journey.

WorkCover will look at the reason for the delay and the actual or estimated time for the journey in relation to the actual estimated time for the delay. WorkCover will also look at:

• the reason for the interruption or deviation;
• the actual estimated period of time for the journey in relation to the actual estimated period of time for the interruption or deviation;
• for a deviation - the distance travelled for the journey in relation to the distance travelled for the deviation.

If you are injured during a journey between your home or place of employment and a place you are attending in order to obtain medical or hospital advice, attention or treatment, or to undertake rehabilitation or to submit to examination by a registered person in relation to an existing injury for which compensation is payable to you, you will be covered.

Recess claims

If you are temporarily absent from the place of employment during an ordinary recess you are entitled to compensation. However, compensation will not be paid if you voluntarily subject yourself to an abnormal risk during the recess.

Fatal injuries

If death occurs because of an injury, your dependants may be entitled to compensation, as a lump sum, periodic benefits and/or medical and funeral expenses.

HOW DO YOU APPLY?

If you have been injured at work and wish to apply for compensation you should:

• report the injury to your employer immediately;
• if you require medical attention or cannot continue to work, you should visit a doctor of your choice or your employer's doctor (if applicable) for an examination as soon as possible;
• if the doctor agrees your injury is work-related, he or she should give you a Worker's Compensation Medical Certificate. The original copy of the Medical Certificate goes to WorkCover and a copy to your employer;
• fill in an Application for Compensation form. This form is available from your employer, your Union (if applicable) or your nearest WorkCover office;
• obtain and complete an Employment Declaration if you are claiming for wages lost due to time off work. This form is available from WorkCover offices, your employer, the Australian Taxation Office or your local post office;
• attach your Worker's Compensation Medical Certificate to the Application for Compensation and attach an Employment Declaration if required. These forms are needed for WorkCover to consider your Application.

You must lodge your Application within 6 months of the entitlement to compensation arising. Entitlement to compensation for an injury arises on the day you are examined by a doctor.

Lodging an Application

If your employer has internal arrangements for dealing with Workers' Compensation Applications, you should give your Application to your employer but KEEP A PHOTOCOPY OF THE APPLICATION AND DETAILS OF WHO YOU GAVE IT TO. If not, lodge your Application for Compensation by post or in person at your nearest WorkCover office. The WorkCover office in Brisbane is located at 280 Adelaide Street, Brisbane.

DECIDING YOUR APPLICATION

Once you have lodged all the required forms WorkCover may talk to you, witnesses to your injury, your doctor or your employer to help them reach a decision about your application. Statements may be taken from yourself, any witnesses to your injury and your doctor may be asked to provide a report. Some Applications are more complicated than others and may take longer to decide.

In deciding your Application, WorkCover may also make appointments for you to attend upon various doctors or specialists to diagnose or assess your injury. Any reports obtained will be used by Work Cover to make their decision to accept or reject your Application.

MEDICAL ASSESSMENT TRIBUNALS

If your Application for Compensation is of a complex medical nature, WorkCover can refer your claim to a Medical Assessment Tribunal for determination. Medical Assessment Tribunals are independent of WorkCover.

The Medical Assessment Tribunal will determine your injuries and assess your impairment (if any). You may also be referred to a Medical Assessment Tribunal if you disagree with an assessment of your impairment.

There are 7 Medical Assessment Tribunals, each made up of 3 doctors who are specialists in the area of your injury.

If you are referred to a Medical Assessment Tribunal prior to the acceptance of your claim you should speak with your Union (if applicable) or our office as rejection of your claim can mean that you cannot claim damages at common law.

A decision by the Tribunal is final and can only be reviewed in exceptional circumstances.

RETURN TO WORK

When you return to work you must:

• send a doctor's certificate stating your fitness for work, to WorkCover; or
• advise WorkCover in writing that you have returned to work.

If you do not advise WorkCover within 14 days of your return to work you may be charged with fraud.

WORKERS WHO CANNOT RETURN TO WORK

If you are unable to return to your usual job due to your injuries, and there are no other appropriate options available to you, WorkCover may offer you on-the-job training for new job skills or sponsorship for approved courses. WorkCover can also help you to explore other occupational options.

SELF-INSURERS

From 1st July 1997, WorkCover have licensed certain employers to be self-insurers.

If you are employed by a self-insurer, you have the same rights as any other worker in relation to workers' compensation. The only difference is that you make your Application for Compensation to your employer rather than WorkCover.

If your employer is a self-insurer and you believe that a wrong decision has been made by your employer about your Application, you may ask WorkCover to review the decision. The review process will be the same as for all other workers.

IF YOUR CLAIM IS ACCEPTED WHAT ARE YOUR ENTITLEMENTS?

If your Application is accepted you will receive statutory benefits. These benefits may include:

• weekly compensation payments;
• medical treatment costs;
• hospitalisation costs;
• travelling expenses;
• rehabilitation costs;
• lump sum compensation.

Weekly compensation payments

WorkCover does not pay for the hours lost on the day of ceasing work (usually the day of injury). Your employer is responsible for paying you an employer excess of the first 4 days of your entitlement to weekly compensation if your claim is accepted.

Weekly payments are calculated according to two different structures.

Structure 1 - employment under industrial agreement

If you are totally incapacitated because of your injury (i.e. unable to work at all) and your employment is covered by an award or workplace agreement, the weekly payments for the first 26 weeks are the greater of:

• 85% of your normal weekly earnings; or
• the amount payable under the industrial award or agreement.

After this initial 26 weeks, weekly payments fall to the greater of:

• 65% of your normal weekly earnings; or
• 60% of QOTE.

This will continue until you return to work or until 2 years post accident. The amount payable after the first 26 weeks cannot be more than what was paid during the first 26 weeks.

After 2 years, weekly payments will depend on the degree of your impairment resulting from the injury. You cannot receive more than if the injury had not been sustained.

QOTE is a seasonally adjusted amount of Queensland full-time adult's ordinary time earnings as declared by the Australian Statistician. (From lst July 1997 to 30th June 1998 the amount of QOTE is $656.80).

Structure 2 - employment where no industrial agreement

If you are totally incapacitated and your employment is not covered by an industrial agreement, weekly payments for the first 26 weeks are the greater of:

• 85% of your normal weekly earnings; or
• 70% of QOTE.

After that, weekly payments are the greater of:

• 65% of your normal weekly earnings; or
• 60% of QOTE.

After 2 years, the weekly payments will depend on the degree of your impairment resulting from the injury. Again you cannot receive more than if the injury had not been sustained.

Return to work

If you return to work on partial duties or hours, your employer must notify WorkCover to ensure you are paid the correct compensation payments.

Employer excess

The amount your employer must pay you is the amount you are entitled to for weekly compensation payments up to the first 4 days after you become entitled to compensation. This is called the employer excess.

The excess period is up to a maximum of four days and is determined according to your:

• contract of service (i.e. number of days worked per week) with the employer at the time the injury happened; and
• continuing incapacity because of the work-related injury.

For example, if you worked 5 days a week, the excess is 4 days (if your incapacity extends to at least 4 days). If you were employed on a casual basis for 2 days a week, the excess period is 2 days. If you were employed for one day only, the excess period is one day.

If you work for more than one employer, only the employer in whose employment the injury occurred is obliged to pay the excess for your earnings in that job.

Paying the employer excess

Your employer can pay the employer excess amount directly to you before you lodge an Application for Compensation. If this happens your employer will note the details of the payment on the Employers Report.

If your employer pays the employer excess directly to you and WorkCover does not allow your Application for Compensation, he or she will probably negotiate the return of the excess with you.

If WorkCover allows your Application and your employer has not paid the employer excess, WorkCover will advise your employer that your Application has been accepted and that they are to pay the excess to you. If the excess is not paid within 14 days, WorkCover will pay it on your employer's behalf.

MEDICAL AND REHABILITATION TREATMENT COSTS

It is WorkCover's aim to assist injured workers to return to and remain in suitable employment as soon as possible following an injury. WorkCover believes that the workplace is the most appropriate and effective place to rehabilitate most workers.

The Act requires injured workers to participate in rehabilitation programs as soon as possible after injury. A failure or refusal to participate can result in compensation payments being cancelled altogether or suspended.

Before you commence any rehabilitation program your doctor will be asked to approve the program. This is done to make sure that the program does not aggravate the injury and does not interfere with the doctor's course of treatment.

Any information obtained during a program should be confidential to the Coordinator. Management should only be aware of those aspects of a worker's injury that affect the worker's ability to work.

WorkCover will pay reasonable medical and rehabilitation treatment costs for an injury. These costs may include:

• medical treatment by a registered person, e.g. doctor, dentist, physiotherapist;
• medicines and medical supplies, e.g. bandages;
• equipment, e.g. crutches or wheelchair.

WorkCover will only pay for medical and rehabilitation services if your claim has been accepted and you are covered by a current Worker's Compensation Medical Certificate when you receive treatment.

You must send accounts for medical and rehabilitation treatment to the Claims Officer managing your claim.

WorkCover will only pay medical and rehabilitation expenses according to set Tables of Cost. You should clarify with your doctor or rehabilitation service provider, prior to receiving treatment, that he or she accepts WorkCover's fees or you may have to pay the difference.

If your employer is self-insured, you should find out whether he/she has a different arrangement in place for rehabilitation programs. If you have any problems with the program you should talk to your Rehabilitation Coordinator, to your Union representative (if applicable), or to a solicitor from our office.

WORKPLACE REHABILITATION

The type of rehabilitation services provided by WorkCover depend upon the nature and progress of your injury.

Employer's responsibilities

Your employer must take all reasonable steps to help you with rehabilitation and suitable duties while you are being paid compensation. Your employer has a statutory obligation to do this and can be penalised for not doing it.

Your employer must also appoint a Rehabilitation Coordinator and put a workplace rehabilitation policy and procedures in place if there are 30 or more workers at your workplace.

Suitable duties program

To assist an injured worker return to the workplace through a supervised, graduated return-to-work process, a suitable duties program is usually designed. The program - which must be approved by your treating doctor - matches your abilities (as you recover) with set tasks and a set number of hours worked each day.

A suitable duties program is usually undertaken at your current place of employment. The program may be undertaken with a host employer if appropriate suitable duties are not available with your current employer. The aim of the program is to get you back to work as quickly and as safely as possible.

Wages during a suitable duties program

During a suitable duties program, you may be paid in one of three ways:

• you may continue to receive weekly compensation payments from WorkCover; or
• your employer will pay you for the work that you do and WorkCover will pay the difference: or
• your employer will pay your full wages and WorkCover will reimburse him or her for the amount of your weekly payment entitlement.

The last option avoids delay in payment or overpayment and is therefore preferable.

HOSPITALISATION COSTS

WorkCover may pay the costs of hospitalisation if you are an in-patient in a private hospital or an in-patient in a private ward of a public hospital.

Prior approval must be obtained from WorkCover if the hospitalisation:

• is for more than 4 days; or
• is elective.

You may be charged by the hospital for any fees incurred if your doctor does not obtain prior approval. Prior approval is not required if you attend a public hospital as a public patient.

TRAVELLING EXPENSES

WorkCover may pay your expenses if you:

• travel more than 20 kilometres one way, or 150 kilometres or more in 7 consecutive days;
• obtain medical treatment;
• undertake rehabilitation;
• attend a Medical Assessment Tribunal hearing;
• are examined by a registered person.

If treatment or rehabilitation is available nearer than the place to which you travel, WorkCover will not pay for travel.

LUMP SUM COMPENSATION

Lump sum compensation is a one-off statutory payment, determined by reference to a Table of Injuries contained in the WorkCover Queensland Regulation 1997.

If the injury you sustained results in permanent impairment WorkCover will offer you a lump sum compensation payment. Permanent impairment means that because of the injury you have lost the use of part of your body.

Your permanent impairment will be assessed by a doctor as a percentage loss in accordance with the Table of Injuries. WorkCover then calculates a percentage work-related impairment for the injury in accordance with the Act.

WorkCover will then use the percentage work-related impairment to determine:

• whether you have to choose between statutory lump sum compensation and claiming for damages;
• the legal and outlay costs you have to pay if you choose to claim for damages;
• your entitlement to additional lump sum benefits if you are seriously injured (i.e. 50% work-related impairment or more).

You will receive a Notice of Assessment if you have been assessed as having a work-related permanent impairment.

Included in the Notice of Assessment will be an offer form asking whether you want to accept, reject or defer WorkCover's offer of lump sum compensation.

The first thing to consider is whether or not you agree with the assessment of permanent impairment. If you disagree with the percentage work-related impairment you should sign and tick Box B and you will then be referred to a Medical Assessment Tribunal. If you have already been to a Medical Assessment Tribunal you will not be given this option on your Notice of Assessment, as the decision of a Medical Assessment Tribunal is final and cannot be reviewed unless, for example, you provide fresh medical evidence which was not available at the time of the Tribunal hearing.

If you agree with the degree of work-related impairment, you then need to decide whether to accept, reject or defer the offer.

You must return this form to WorkCover within 28 days of receiving it. If you do not return the form within this time, WorkCover will consider that you have accepted their assessment of your permanent impairment and you will not be entitled to have the matter of the extent of your permanent impairment determined by a Medical Assessment Tribunal. At the end of this 28 days, your entitlement to compensation will stop.

Your entitlement to further statutory compensation ceases for that injury following an offer of lump sum compensation. If your condition deteriorates, consideration may be given to further compensation under certain circumstances.

When you receive your Notice of Assessment you may wish to contact our office, if you have not already done so, as the completion of this form is a very important step in your application for compensation and has an effect on whether you may be able to obtain any further compensation for your injury.

ACCEPTING OR REJECTING LUMP SUM COMPENSATION

Permanently impaired workers irrevocable election

If your work-related impairment is assessed as being less than 20%, you must choose between:

• accepting the statutory lump sum compensation offered by WorkCover; or
• claiming damages from your employer.

This choice between accepting or rejecting the offer of lump sum compensation is called the "irrevocable election".

If your work-related impairment is assessed as being 20% or more, you have the right to:

• accept the statutory lump sum compensation offered by WorkCover; and
• claim for damages from your employer.

Note: If you suffered a psychiatric or psychological injury and your work-related impairment is assessed as being less than 20%, you cannot combine this figure with the assessment in relation to another injury to reach 20% or more.

If your Notice of Assessment states that you have not sustained any degree of permanent impairment (ie. you have been given a work-related impairment assessment of 0%) you may still choose to claim damages.

FURTHER INFORMATION

This Information Outline is provided courtesy of Hall Payne Lawyers who are experienced in this area of law. They are located at Level 9, 344 Queen Street, Brisbane, QLD 4000 or call them on (07) 3221-2044 if you would like more information on the legal topic, or you wish to obtain formal advice regarding your situation.

Hall Payne Lawyers are an established Queensland firm practicing in the areas of employment law (unfair dismissal etc), accident compensation (WorkCover, motor vehicle accident, personal injuries), anti-discrimination & harassment, consumer law, family law, wills & estates, criminal law and conveyancing. Hall Payne Lawyers are a founding member of the Australia-wide PeopleLaw group.