Work injuries: compensation and common law options
Queensland Teachers' Journal, Vol 129 No 4, 7 June 2024, page 27.
There are two types of claim you can make if injured at work:
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a no-fault “statutory” claim (workers’ compensation)
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a common law or “damages” claim.
Normally, a statutory claim is made first and a common law claim is considered after medical treatment has finished. If you have not made a statutory claim, you can still consider whether to make a common law claim.
Time limitations
Submit an incident report to the department immediately. A delay of even a few days can create difficulties when seeking compensation. For statutory claims, make the claim to WorkCover within 28 days of injury, and within 6 months at the latest. There is a three-year limitation period for common law claims.
Statutory workers’ compensation claim
Workers’ compensation, through WorkCover, can pay your wages and medical costs, regardless of fault.
Deciding your claim
The Workers’ Compensation and Rehabilitation Act 2003 (Qld) recognises both physical and psychological/psychiatric injuries. You must prove:
- you have sustained an injury
- work-related factors significantly contributed to your physical injury
- for psychological injury, the injury did not arise from “reasonable management action” taken in a reasonable way (which includes discipline action, dismissal, or demotion).
What is “reasonable” is interpreted very broadly. For example, managing unsatisfactory performance processes or investigation of a student complaint against a teacher are ordinarily found to be reasonable. Psychiatric injury arising from parent behaviour or student assaults should be accepted by WorkCover. If you have only one factor, eg assault by a student, you can make a claim relying on that factor only. Do not feel compelled to add additional background or “lack of support” comments.
Compensation
If accepted, compensation may include:
- weekly payments as income replacement
- hospital and medical expenses, such as medications, doctor’s appointments, and medical equipment.
Once your injury is assessed as “stable and stationary” by medical practitioners, the claim will be closed. You may be entitled to a small lump sum of compensation at this stage. An injury is “stable and stationary” when doctors decide that medical treatment is unlikely to improve the injury substantially in the short term.
Unhappy with a decision?
You can seek a review of the decision through the Workers’ Compensation Regulator. If you are still unhappy with the decision, you can appeal to the Queensland Industrial Relations Commission. A refusal to pay for a specific medical expense cannot be reviewed and can only be appealed to the Commission.
What happens at the end of your claim?
If you return to work and cease medical treatment, your claim will close, often without notice. If you have ongoing difficulty returning to work or need medical treatment, WorkCover will gather medical information to determine whether your injury is stable and stationary. If it is stable, the claim will close.
What happens if your injury has caused permanent impairment?
The permanent impairment assessment should be objective, so a PE teacher will receive the same compensation as an English teacher for a hand injury, even though it might end the career of the PE teacher.
When your injury has reached a stable and stationary state, a doctor will assess the level of permanent impairment. From the doctor’s report, your work-related impairment (WRI) will be calculated and a lump sum offer made. You can accept or decline this offer. However, if you accept it, you cannot seek common law damages. If you want advice about a damages action, you should defer the offer of compensation.
Common law claims
This involves suing your employer for negligence. Once the process has begun, you are deemed to have rejected the lump sum resulting from the permanent impairment assessment. You should wait for the assessment before starting a damages action, so you know what you are rejecting. Time limitations still apply, and you should not wait any longer than 2.5 years.
The courts may award payments (known as common law damages) for:
- economic loss
- pain and suffering
- legal costs
- medical and hospital costs.
Damages can be recovered if you can establish that there was some fault on the part of the employer. WorkCover will defend this claim on behalf of the employer.
Impact on your personal life
Courts are obliged to use a specific injury scale that does not take into account subjective pain and suffering. Loss of personal activities, such as participation in sport, is unlikely to attract any specific compensation.
For further information or assistance please contact the QTU.