Legal: Three’s the magic number for injured teachers
Queensland Teachers' Journal, Vol 128 No 7, 29 September 2023, page no. 23
Injured teachers wishing to pursue their employer for damages arising from the employer’s negligence generally have three years to “commence a claim”. But that process is far from straightforward and essentially involves two separate claims: the statutory claim, sometimes followed by a common law damages claim.
The statutory claim
The statutory claim involves pursuing weekly benefits (wages) and treatment. WorkCover, like any other insurer, will assess the claim on its merits. It considers whether the worker was an “employee”, sustained “an injury”, and whether the workplace was a “significant contributing factor”.
Once satisfied, WorkCover pays for weekly wages (compo) and pay for treatment. This process continues until such time as WorkCover considers the injury to be stable and stationary (noting that wages drop to 75 per cent of full income after six months). WorkCover may then assess the injury for a permanent impairment, resulting in a “notice of assessment”. This attributes a whole of body impairment percentage, which is converted to a dollar figure intended to cover for future medical expenses.
The common claim
The common law damages claim allows a worker to pursue the employer for damages in a negligence claim. This allows a worker to pursue future lost income, future treatment, and loss of future superannuation – for example, should the injuries result in working futures that are now substantially different from what they were pre-injury.
However, a worker’s injuries are often far from straightforward, both in their diagnosis and their treatment. Treatment providers change throughout the life of the claim and medical opinions can differ. WorkCover, like any other insurer, only wants to fulfil its obligations under the Act, and essentially pays the bare minimum. Workers can be left unsatisfied with this, and unfavourable decisions on treatment may need to be reviewed through the workers' compensation regulator.
This means that the first part of this WorkCover process can be drawn out. If the worker isn’t getting the treatment they need or want, the injuries are often far from stable, and the conclusion of the statutory claim becomes even more drawn out.
It is essential that injured teachers understand that no matter how long the statutory claim takes, the requirement to “commence a (negligence) claim” (or common law damages claim) within three years of the date of the injury does not change.
However, on 17 September 2015 the Queensland Parliament amended the Workers' Compensation and Rehabilitation Act 2003 to allow workers to request a notice of assessment (despite their statutory claim being unresolved). This means that should a worker going through the first part of their WorkCover statutory claim request to have their injuries assessed for permanent impairment, they are effectively given an extension of six months from receipt of the notice to assessment to bring a claim for damages. As long as the request for the notice is made “before the end of the general limitation period” (that is, before the end of three years from the date of injury), the worker is afforded an additional six months to “commence a claim”.
The case of Sankey v GPC Asia Pacific Pty Ltd [2022] QSC 213 considered this exact issue. Jarrod Sankey had suffered a lower back injury (and subsequently a psychiatric injury) and was attempting to commence a damages claim arising from his employer’s negligence in causing the injury.
Jarrod Sankey’s mother Yvonne Sankey, who acted on his behalf, had allegedly requested a notice of assessment by way of a phone call to WorkCover before the general limitation period of three years expired. WorkCover and its solicitors argued that the worker’s claim was statute barred due to the three-year limitation.
The WorkCover claims officer had failed to take note of the request during the phone call and WorkCover relied on a file note from the telephone call, which did not record any request made by the worker.
Mr Sankey filed an application seeking a declaration under the amendments to the Act that the time in which he could make a damages claim was extended six months from the date of his alleged request.
In a surprising (but helpful) decision, Justice Crow gave more weight to the worker’s testimony, believing that his mother had in fact asked for the notice of assessment, but this had simply not been noted by WorkCover’s claims officer.
The takeaway from this is that injured teachers should be aware of the complete picture as to their entitlements to pursue damages as they begin their WorkCover journey. After suffering an injury, no teacher wants to believe that their injury will have lasting impacts. But it is vitally important that they hope for the best, while planning for the worst.
Any QTU members who have had their statutory claim accepted, but who feel that their injury has the potential to permanently impact their career, should seek advice from the Union well in advance of the three-year deadline.