Workplace Injuries

If you have been injured at work, you may be entitled to make a workers’ compensation claim with WorkCover Queensland or through your employers’ own workers’ compensation insurance (ie some large employers are self-insured). Workers’ compensation is available to employees on wages but can also apply to some workers operating under an ABN. Whether a worker who is working under an ABN will be entitled to workers’ compensation through that employer’s workers’ compensation insurance largely depends on the degree of control that the employer has over that worker.

If you are found to be an independent contractor, you will not be entitled to workers’ compensation benefits and will need to consider whether you have a public liability claim against the individual or company that caused your injury. Call one of our personal injury law experts today to discuss your options in that regard.

How Do Workers’ Compensation Claims Work?

There are two (2) types of workers’ compensation claims, namely:

Statutory Workers’ Compensation Claims

If you are injured at work, you will be entitled to make a statutory workers’ compensation claim. It does not matter if the accident or injury was your own fault, provided that you did not intentionally cause your own injury.

Once WorkCover receives your claim, they will set about making a determination in relation to whether your claim should be accepted. When making that determination, WorkCover considers the following matters:

  • Whether you are a worker or an independent contractor;
  • Whether you have suffered a personal injury;
  • Whether the personal injury arose out of or in the course of your employment; and
  • Whether your employment was a significant contributing factor to your injury.

In the case of psychiatric or psychological injuries, WorkCover will also consider the following:

  • Whether your injury arose out of, or in the course of, reasonable management action taken in a reasonable way by your employer in connection with your employment;
  • Whether your injury arose out of, or in the course of, your expectation or perception of reasonable management action being taken against you; and
  • Whether your injury arose out of, or in the course of, action taken by the Workers’ Compensation Regulator or WorkCover (or a self-insurer) in connection with your application for compensation.

Once your claim is accepted, WorkCover will pay the following compensation:

  • Weekly benefits (which is normally 85% of your average weekly earnings, for the first six (6) months after which that amount may reduce);
  • Any reasonable and necessary medical and rehabilitation expenses; and
  • A lump sum for any permanent impairment that you are left with once your injuries are deemed to be stable and stationary.

You should NOT accept any lump sum offer from WorkCover or your employer’s workers’ compensation insurer without first seeking legal advice from an expert personal injury lawyer.  If the assessment of permanent impairment is less than 20% and you accept the lump sum offer, you will NOT be able to pursue a common law claim.

Common Law Claims

In order to pursue a common law claim, you have to be able to show that your injury was caused by the negligence of your employer or a co-worker. Negligence can be established by showing that there was a poor system of work, excessively heavy or repetitive work, defective equipment, poor lighting, slippery surfaces or other dangerous working conditions. If human error from one of your co-workers has caused your injury, then your employer (and therefore WorkCover) will be responsible for your injuries and the loss and damage that you have sustained.

In common law claims, you can claim a lot more than you can in the statutory claim. The heads of damage that can be claimed include the following:

  • Pain and suffering and loss of enjoyment of life;
  • Past lost income;
  • Past out of pocket expenses (eg treatment, rehabilitation, medication, transportation, aids, appliances, prosthesis, home modifications, transport modifications, education and training);
  • Past paid services (eg attendant care and support services, cleaning, cooking, gardening, housekeeping, mowing, etc), provided these services were not being provided prior to your injury;
  • Interest on any past lost income, expenses or services;
  • Future potential loss of income/ earning capacity;
  • Future potential out-of-pocket expenses; and
  • Future potential paid services.

We will assess the accident, incident, events or circumstances that led to your injury and will provide you with our expert opinion as to your prospects of success in relation to a common law claim. If we consider you to have reasonable prospects of success, and that your claim is economically viable, then we will agree to act on your behalf on a “no win no fee” basis. Click here for more information on how we charge.

Don’t delay! Very strict time limits apply with respect to workers’ compensation claims. Speak with one of our expert personal injury lawyers today for free advice regarding your WorkCover claim and to learn some tips and tricks on how best to deal with WorkCover.

Claims Process for Work Injuries

Statutory Workers’ Compensation Claims Process

  1. Lodge Claim Form with WorkCover Queensland (or your employer’s self-insurer);
  2. WorkCover Queensland (or your employer’s self-insurer) will require a Work Capacity Certificate completed by a medical practitioner confirming what injuries you have sustained as a result of the work incident;
  3. WorkCover makes a determination as to whether to accept your claim (ie whether they will accept that your injury is work related etc);
  4. Once your claim has been accepted, and provided you have ongoing Work Capacity Certificates, WorkCover will pay for:
    • Weekly benefits for some or all of your lost wages for any time off work;
    • All reasonable and necessary medical and rehabilitation expenses; and
    • A lump sum for any permanent impairment you have.
  5. In the meantime, WorkCover will try and assist you with getting back to work, with your employer or a Host Employer, as soon as possible following your injury.
  6. WorkCover will then wait until your injuries are considered to be stable and stationary before arranging for your injuries to be assessed for permanent impairment.  Sometimes you need to ask WorkCover yourself to assess your injuries for permanent impairment.
  7. Once your injuries have been assessed for permanent impairment, WorkCover will issue a Notice of Assessment. The Notice of Assessment will contain one or more lump sum offers (a separate offer for your physical injuries and another for your psychological injuries, where applicable).
  8. You then have twenty (20) business days to decide if you will accept, reject or defer WorkCover’s lump sum offer(s). Please DO NOT accept any lump sum offer(s) without first seeking legal advice, as doing so may prevent you from pursuing a common law claim.
  9. Once the twenty (20) business days has elapsed, your WorkCover claim will be closed and all payments will cease.
  10. If you are not back at work by that time, you would need to consider whether you are eligible to claim Centrelink benefits or whether you might have income protection benefits under an insurance policy or your superannuation policy. We could also provide you with the name of a settlement lending company who may be prepared to provide a loan to you now which is then re-paid, in addition to any interest and fees payable, out of your settlement monies.
  11. Once your Notice of Assessment has issued, we are then able to commence your common law claim.

Common Law Claims Process

If you have already applied to WorkCover (or a self-insurer) for workers’ compensation benefits, then a common law claim cannot be commenced until after you have received a Notice of Assessment from WorkCover Queensland (or the self-insurer).

Once you have received a Notice of Assessment, the common law claims process is as follows:

PRE-COURT STAGE

  • Step 1 – Serve Notice of Claim for Damages (containing Offer of Settlement) on Employer and WorkCover Queensland (WorkCover handles claim as employer’s insurer)
  • Step 2 – Medico-legal Examinations (for both sides)
  • Step 3 – Liability Response from WorkCover (6 months after service of Notice of Claim for Damages)
  • Step 4 – Compulsory Settlement Conference (within 3 months after receipt of liability response) (70% of claims resolve at this stage)
  • Step 5 – Exchange Written Final offers (at conclusion of conference if no settlement agreement reached)

LITIGATED STAGE

  • Step 6 – File Claim and Statement of Claim (within 60 days of conference)
  • Step 7 – Defendant files a Defence
  • Step 8 – File Reply to Defence
  • Step 9 – Serve Statement of Loss and Damage (setting out quantum of claim)
  • Step 10 – Mediation (90% of claims will resolve by this stage)
  • Step 11 – Prepare for Trial and/or Conduct Final Negotiations

TRIAL

  • Step 12 – Attend Court with Medical and Lay Witnesses to Give Evidence
    (less than 2% of personal injury claims proceed to trial)

So, what is required of you during the common law claim process?

You can live your life normally and we will take the pressure off you by handling the vast majority of your claim.  What we will need from you might include the following:

  1. You will need to attend an initial appointment to provide us with relevant information about the incident;
  2. You will have to help us finalise any claim form, to ensure that we get your story straight, and then sign that claim form;
  3. You will need to attend medicolegal appointments for us and the insurer;
  4. You will need to provide us with copies of any relevant documents that might be required including receipts (for treatment etc), tax documents and an impact statement (setting out how your injuries have affected you);
  5. You will need to approve any offer of settlement that we put together on your behalf; and
  6. You will have to attend a compulsory settlement conference to provide us with any information we need and instructions regarding any offers of settlement. You will not be required to answer questions from the other side during the conference. (70% of claims resolve at this stage)

If the claim fails to resolve at the compulsory conference:

  1. You will need to attend a mediation to provide us with any further information we need and instructions regarding any offers of settlement. (90% of claims resolve by this stage)
  2. You will not be required to answer questions from the other side during the mediation.

If the claim fails to resolve at the mediation:

    1. You will need to provide us with instructions in relation to any further offers of settlement that are forthcoming or that we wish to make prior to trial;
    2. You will need to attend court and give evidence as a witness if the matter proceeds to trial. (NB less than 2% of personal injury claims proceed to trial)

FAQs

The short answer is “the earlier the better”. This is so we can:

  • ensure that you are telling WorkCover and the doctors the whole story;
  • ensure that your doctor lists all injuries you have suffered on your work capacity certificate;
  • ensure that WorkCover “accepts” all injuries;
  • ensure that WorkCover is paying you the right amount of weekly benefits and is paying for all necessary and reasonable treatment; and
  • start preparing your common law claim, so that your claim can be commenced as quickly as possible after your “compo” claim ceases.
  1. Report your injury as soon as possible to your employer.
  2. Seek treatment and ask your doctor to complete a work capacity certificate: https://www.worksafe.qld.gov.au/__data/assets/pdf_file/0007/77119/form-132m-work-capacity-certificate-workers-compensation.pdf
  3. Provide your employer with a copy of the work capacity certificate.
  4. Complete WorkCover’s online Claim form, which can be found here: https://ols.workcoverqld.com.au/ols/public/claim/lodgement.wc
    OR
    Complete a hard copy of the Claim form and upload using WorkCover’s online service (https://ols.workcoverqld.com.au/ols/public/uploadNewClaim.wc?code=NEWCLAIM), or fax it to 1300 651 387, or post it to GPO Box 2459, Brisbane Qld 400
    The pdf of the Claim form can be found here: https://www.worksafe.qld.gov.au/__data/assets/pdf_file/0015/3057/Claim-form-FM106-v10.pdf
    OR
    In the case of fatal claims or where urgent surgery is required, a claim can be lodged over the phone by calling WorkCover on 1300 362 128.
  5. Upload a copy of the work capacity certificate using WorkCover’s online service (https://ols.workcoverqld.com.au/ols/public/uploadNewClaim.wc?code=NEWCLAIM) or fax it to WorkCover on 1300 651 387.
  6. WorkCover will then contact you to confirm that the claim has been received and will contact your employer to obtain confirmation that the injury is work related.  If satisfied it is a work related injury, your claim will be officially accepted and WorkCover will then pay weekly benefits for your time off work and any reasonable and necessary treatment and rehabilitation.

Often a subcontractor working under an ABN will be considered to be a “worker” under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) if the subcontractor is effectively working as an employee. If you are considered a “worker”, then you will be entitled to make a workers’ compensation claim through WorkCover Queensland (or your employer’s self-insurer).

Whether you will be considered to be a worker will largely depend on the degree of control that the company you are working for (“the employer”) has over you with respect to things like:

  1. Whether you wear your own uniform or the employer’s uniform;
  2. Your ability to subcontract or delegate your work to someone else;
  3. Your right to dictate your place of work, hours of work and the like;
  4. Your ability to control how the work is done;
  5. The basis upon which you are paid (hourly rate or contract);
  6. Whether you use the employer’s vehicle, equipment and/or tools;
  7. Whether you are personally responsible for the quality of the job and have to remedy any defects.

You only have six (6) months from the date you were injured to lodge a statutory workers’ compensation claim.  It is important to lodge the claim as soon as possible, however, as WorkCover (or the self-insurer) is only obliged to pay benefits as far back as twenty (20) business days prior to the claim being lodged.

There are some exceptions to the six (6) month rule, so we would recommend you seek legal advice as to whether you might still be able to lodge a claim even if you are outside that six (6) month timeframe.

Even if you did not lodge a statutory workers’ compensation claim within the six (6) month timeframe, you may still be able to pursue a common law only claim.  Speak with one of our expert personal injury lawyers to discuss your options in that regard.

The types of injuries that injured workers can claim workers’ compensation for include the following:

  • Head injuries
  • Traumatic brain injuries (TBI) and acquired brain injuries (ABI)
  • Post-concussion syndrome
  • Spinal cord injuries, including tetraplegia (also known as quadriplegia) and paraplegia
  • Brachial plexus injuries
  • Amputations
  • Catastrophic injuries
  • Injuries causing death
  • Neurological injuries
  • Thoracic outlet syndrome
  • Complex regional pain syndrome
  • Cauda equina injuries
  • Facial and jaw injuries
  • Spinal injuries
  • Whiplash injuries
  • Neck injuries
  • Back injuries
  • Fractures and dislocations
  • Shoulder injuries
  • Elbow injuries
  • Hand, wrist and finger injuries
  • Carpal tunnel injuries
  • Repetitive strain injury
  • Vibration injuries
  • White finger syndrome injuries
  • Pelvis and hip injuries
  • Internal organ injuries
  • Abdominal injuries
  • Hernias
  • Groin injuries
  • Leg and thigh injuries
  • Knee injuries
  • Foot and ankle injuries
  • Toe injuries
  • Soft tissue injuries
  • Electrocution injuries
  • Blindness
  • Industrial hearing loss
  • Burns
  • Cuts, lacerations and bruises
  • Chemical injuries
  • Scarring
  • Chronic pain disorder
  • Psychiatric and psychological injuries including depression, stress, posttraumatic stress disorder, adjustment disorder, anxiety, traffic phobia, pain disorder
  • Nervous shock injuries
  • A disease caused by your employment
  • Fatal injuries / death
  • Aggravation of pre-existing injuries
  • Aggravation of pre-existing degeneration

Yes. If you are involved in an incident at work that has made your pre-existing condition more symptomatic than it was previously, sooner than was otherwise expected, then this will be considered to be an aggravation of your pre-existing condition and will be considered a separate injury.

WorkCover will pay for any reasonable and necessary treatment and will pay for any time off work caused by the aggravation of that pre-existing condition.

If your claim has been rejected by WorkCover (or your employer’s self-insurer), you will have to lodge an Application for Claim Review with the Workers’ Compensation Regulator within three (3) months of receiving WorkCover’s decision.  You will need medical and other evidence to support your review application.

If the Workers’ Compensation Regulator agrees with WorkCover and rejects your claim, you will have to appeal to the Queensland Industrial Relations Commission within twenty (20) business days of receiving notice of the Regulator’s review decision.

It depends on the types of injuries you have sustained but an average “compo” claim will last for around six (6) months. Some claims last much longer than that, though, if you continue to require treatment.

WorkCover must wait until all your injuries have been properly treated and they are at the point of being “stable and stationary” before they can arrange for your injuries to be assessed for permanent impairment.

Once your injuries have been assessed for permanent impairment, WorkCover will issue a Notice of Assessment which will contain a lump sum offer if you have been assessed as suffering from some degree of impairment due to your work related injuries.

Once you have received the Notice of Assessment, your statutory workers’ compensation claim will then only remain open for a further twenty (20) business days before it is then closed.

You only have three (3) years from the date of injury to serve a Notice of Claim for Damages on your employer and WorkCover Queensland and to receive a “compliance” response from WorkCover confirming that you have provided all necessary information.

If steps are not taken within the three (3) year time limit to protect your interests, you could well lose all rights to receive any further compensation/damages.

There are some limited exceptions to this rule, however, so you should speak with on our of our expert personal injury lawyers to discuss any options you have in that regard.

In a common law claim you are alleging that your employer or a co-worker was negligent in some respect, so the claim is directed at your employer but WorkCover Queensland takes the claim over as your employer’s insurer and handles the claim on their behalf.

A common law claim does not impact upon your co-workers at all. They may be required to provide a statement about what happened but that would be it.  In the unlikely event that the matter was to proceed to trial, they may also be called upon to give evidence.

With respect to your employer, a workers’ compensation common law claim will have some impact upon their future workers’ compensation premiums.

Every case is different and the amount of compensation or damages payable to you will depend on many things, including:

  • How you recover from your injuries
  • Your age
  • The medical evidence
  • What other pre-existing injuries or conditions you had
  • What permanent restrictions you have, particularly with respect to your work capacity
  • What your earning capacity was like prior to the accident, compared to what your earning capacity now looks like
  • How much care and support you need
  • How much ongoing treatment and medication you need

Many common law claims settle for hundreds of thousands of dollars or more.

The average common law claim takes around 9 to 10 months from the date the claim is commenced. A common law claim is not commenced, however, until after your statutory workers’ compensation claim ceases.

Some common law claims can take much longer where there are other parties involved or if there is some dispute over whether the employer should be held liable for your injuries. Other factors which might delay your claim include obstinate opponents (lawyers being difficult), conflicting medical evidence and complex employment arrangements (businesses, family trusts, etc).

No, any settlement of your common law claim will be clear of the refund payable to WorkCover (or the self-insurer).

We will do this for you but we cannot commence your common law claim until after you have received a Notice of Assessment from WorkCover (or the self-insurer).

Once you receive the Notice of Assessment, we will prepare a Notice of Claim for Damages on your behalf, have you check it and then amend and finalise it for your signature.

We then arrange for you to sign it and then serve the claim form on your employer and WorkCover Queensland as soon as possible thereafter. WorkCover Queensland then responds to the claim.

This depends on how much work is done. For more information on how we charge, click here.

In Queensland, you will not be taxed on your settlement for a workers compensation claim. However, if you put the amount in a term deposit and earn interest on that amount, the interest may be taxable.

During your free initial consultation, we will:

*East Coast Lawyers is led by Accredited Specialists; Sean Delpopolo, Helen Ashton.

Our Promise To You:

*Strict time limits apply when making a claim. Do not delay.

Need some advice? Contact us today.

Managing Director

Sean Delpopolo

Sean Delpopolo

Sean is an expert in compensation claims and has been recognised in his field as a Queensland Law Society Accredited Specialist.

He has been running compensation claims in Queensland for over 25 years and specialises in work related claims, motor vehicle claims, public liability claims and total and permanent disability claims. He has been voted by his peers to be one of the best compensation lawyers in Queensland.*

Sean started the firm in 2004 and it has gone from strength to strength on the background of outstanding service, incredible results and charging really fair fees.

With an innate sense of fairness and justice, this motivates Sean and his team to do everything they can to ensure that the results they achieve for their clients is something that they can all be proud of. In Sean’s mind, the interests of the firm’s clients come first, before anything else, and this value has flowed on through to the entire team.

As a father of two daughters, Sean understands that his clients’ compensation claims can make a huge difference to their lives and the lives of those around them. This is why he has made it his life’s work to fight for the “little guy” to assist them with obtaining the compensation they deserve.

Director

Helen Ashton

Helen Ashton

Helen Ashton is an experienced and skilled lawyer who fights every day to achieve what is right for her clients.

As an accredited specialist, having been awarded the highest achiever award for the course in 2015, Helen has a high level of knowledge and technical expertise.

Admitted as a Solicitor of the Supreme Court of Queensland in 2001, Helen has extensive experience in running all types of claims.

Helen has a friendly and approachable personality and strives to ensure that her clients are kept well informed and are provided with quality and practical legal advice.

As a mother of three young children, Helen understands the impact events can have on a family unit and works proactively to achieve the right result for her clients in the shortest possible timeframe.

Helen has the ability and the experience to assist clients’ with a wide variety of claims, including claims with a high level of complexity and those that have had catastrophic consequences.

Special Counsel

Barry Mcgee

Barry has always loved a spirited debate, and, with over 20 years specialising exclusively in litigation, his passion, skill, and ability to assist his clients is well known throughout the Queensland profession.

Barry’s legal career began in his native Scotland, where he qualified as a Solicitor in 1998. Upon qualifying, he worked for a boutique practice, and then a top-tier national firm, representing a number of different insurers across a variety of industries. With years of working for insurers under his belt, Barry is able to see matters through the eyes of his legal opponents. Forewarned is forearmed, as they say!

He was admitted to practice by the Supreme Court of Queensland in 2007. In Australia, he commenced working for a large national firm, where he spent 15 years. He was made a Partner of the firm in 2011 and spent 11 years as the firm’s dedicated in-house Special Counsel. As Special Counsel, Barry provided expert advocacy and strategical advice and assistance to the qualified lawyers and clients of the firm alike.

Barry has significant and extensive experience across a wide variety of claims. He is compassionate, personable and straightforward, with a keen sense of what is fair and just, and a reputation for not settling for anything less than his client deserves.

Outside of work he enjoys surfing, the outdoors, music and spending time with his wife and 3 young children.

Special Counsel

Nickelle Morris

Nickelle has been practising exclusively in compensation litigation for over 20 years. She has extensive experience in catastrophic claims and fatality claims across all practice areas.

Nickelle prides herself on being a technical, yet practical and compassionate lawyer. Nickelle takes her time to understand her client’s situations and to ensure that they have an understanding of their rights and entitlements. Nickelle is a tenacious and passionate advocate for her clients and is dedicated in being proactive in ensuring client’s needs are met and achieving the best outcome for clients.

Nickelle was a finalist in the Special Counsel of the Year for Australian Law Awards in 2019.

Outside of work, Nickelle is a mother of two children and is a member on a number of committees both within the legal industry and community.

Special Counsel

Charlotte Evans

Charlotte has practised solely in compensation litigation for over 20 years.

She is committed to fighting for the rights of plaintiffs and helping her clients through the legal maze, to achieve outcomes that put people back in control of their lives. She has had experience in taking a number of matters to Trial and winning hard fought cases for her clients and she does not shy away from a challenge.

Charlotte has a friendly and approachable personality and strives to cut through the legal jargon to make the process understandable for her clients whilst ensuring that her clients are also kept well informed throughout their claim.

Out of the office Charlotte is a busy Mum, who now enjoys the privileges of living in beautiful Queensland and making the most of all it has to offer.