A. Introduction
This section deals with workers compensation law in the state of Queensland. Each state has a slightly different system. Every employer must have workers’ compensation insurance or have approval in certain circumstances to being self insured. Most employers insure with WorkCover Queensland, while a small number of large organisations have their own insurance. This insurance coverage ensures that employees injured at work receive financial support.
All employers of workers in Queensland are required to have a policy with WorkCover according to the Workers’ Compensation and Rehabilitation Act 2003 (the Act). An employer is legally required to insure with WorkCover against the cost of compensating a worker who has a work-related injury. Payment of the WorkCover premium by the due date ensures an employer’s liability is covered. The policy will cover the employer for any workers employed from the date WorkCover processes the application until the end of the financial year. The policy is renewed on a financial year basis. You do not need a WorkCover policy if you do not employ workers.
However, if you engage ABN sole traders, it is wise to insure them as employees with WorkCover Queensland. It is possible that an ABN sole trader may make a claim for workers compensation in the event of an accident and there are serious financial implications if WorkCover determines the worker is an employee rather than a contractor.
B. Statutory Claims
In general, a worker can apply for compensation regardless of who or what caused the work-related injury —this is called a statutory claim. A worker may be able to proceed straight to a common law claim but this should not be done without advice. If a worker applies for compensation, an employer needs to: send an Employer’s Report form to WorkCover within eight business days of learning of the injury and pay the injured worker for the day of the injury.
WorkCover can apply penalties to an employer who pays their own claims.
An application for workers compensation must be lodged within six months of the injury occurring. If the injury is sustained over time, it can be lodged within 6 months of seeing a doctor in relation to the injury. This time can only be waived in a very narrow range of circumstances. Each application is assessed against criteria set out in the Act, including:
- whether the person is a ‘worker’;
- whether the person suffered an ‘injury’;
- whether the person’s employment was a significant contributing factor to their injury (and not caused by reasonable management action taken in a reasonable way).
To help WorkCover reach a decision, it may wish to talk to you, the injured worker, people who witnessed the injury or the injured worker’s treating doctor. WorkCover will contact the person nominated on your Employer’s Report form and the injured worker as soon as a decision is made. WorkCover decides most claims in two weeks, however complex claims may take longer. Some applications can take up to three months to assess. You may want to talk to your employee about leave options such as personal leave or annual leave to help relieve any financial distress they may be feeling during this time.
If WorkCover accepts a worker’s application and they need rehabilitation, a WorkCover case manager will work with the injured worker, their treating doctor and you or your rehabilitation coordinator to achieve a timely and safe return to work.
Under workers’ compensation legislation an employer has certain responsibilities relating to statutory claims, including:
- making sure information provided by the employer is true, accurate and not misleading;
- taking every reasonable step to help with a worker’s rehabilitation while they are receiving compensation;
- letting WorkCover know if you arrange any suitable duties or reduced hours with the injured worker.
It is important to understand that penalties may apply if an employer does not fulfil its obligations.
An employer should note the following points:
- An employer should make sure all the questions are answered and provide enough information on the Employer’s Report form as a decision on a claim will be delayed if WorkCover does not have all the information needed;
- An employer should encourage workers to provide a copy of their application form to help the employer complete the Employer’s Report form;
- An employer should provide every opportunity for workers to return to work after their injury. This has many benefits and can help to reduce the risk of common law claims;
- An employer should make sure it reads the information provided on the Employer’s Report before signing it;
- Remember that Employer’s Report forms may be released under Freedom of Information legislation;
- Only disagree with claims you have a genuine concern about. Unnecessary investigation can lead to longer duration claims and therefore increased claim costs;
- Keep in touch with your worker. Find out if there are any work tasks they won’t be able to do and start to think about suitable duties if necessary. On-the-job rehabilitation is the best way to get an employee back to work, safely and quickly;
- Maintain normal job security for your employee as long as possible.
If you are not satisfied with a WorkCover decision, you have a right to request written reasons within 20 business days of being advised of the decision. You then have 3 months from receiving the written decision to apply for a review by the Workers Compensation Regulator. This is a paper based review and you can provide further information if it is available. If you do not agree with the Regulator’s review decision, you can appeal to the Queensland Industrial Relations Commission which will conduct a hearing. If you do not agree with the decision of the Queensland Industrial Relations Commission, you have the right of appeal to the Industrial Court but only in a narrow range of circumstances.
Workers’ compensation covers a wide range of injuries including psychological/psychiatric injuries (conditions such as depression or anxiety).
Even if the injury didn’t happen in the workplace, it may still be covered if it happened:
- on a work break;
- while working away from their worksite (or travelling between worksites);
- while working interstate or overseas;
- travelling between work and home e.g. on the way to or from work (this is called a journey claim).
If WorkCover accepts the application, the worker will receive compensation benefits and start rehabilitation, if needed. Depending on their injury, these benefits may include:
- weekly compensation payments;
- medical treatments costs (e.g. doctor, physiotherapy);
- hospitalisation costs;
- travelling expenses;
- rehabilitation costs; and
- lump sum compensation for any permanent impairment.
Workers receive compensation in the form of a stepped percentage of their base pre application wages. Practically, statutory compensation is normally paid for 12 months before a worker is referred to a Medical Assessment Tribunal for an assessment of their residual impairment. Depending on the percentage impairment assessed by the MAT, a worker will be offered a lump some statutory compensation payment to finalise their statutory claim. Depending on the percentage assessment, the worker may have to make an election whether to accept the lump sum statutory compensation payment or pursue a common law claim against their employer.
C. Psychological Injury Claims
Psychological or “stress” claims are just as much a workplace injury as a broken leg. However, the evidence is not always so clear. The primary issue of dispute in a stress related claim is usually whether the injury resulted from reasonable management action taken in a reasonable way. It is important for employers to keep a paper trail to document any performance or other management processes. Remember that management action does not have to be perfect to be reasonable. Employers should note:
- WorkCover will not investigate the facts and circumstances of the claim. It is up to you to provide evidence in response to the employee’s claim and WorkCover will not actively speak to witnesses themselves.
- When responding to workers compensation applications, provide as much detail as possible. Use the When, Where, Who, What Rule – when did it happen, where did it happen, who was there and what happened – what was said or done or what occurred. Be as specific as possible. Get help if you need it.
- You can ask workers to provide statements but you need to be careful not to apply undue pressure for employees to assist or influence what they have to say.
- Make sure you separate what is just background from the facts of the bullying incidents which caused the injury.
- Highlight the reasonable nature of the management action if this is an issue. This could be how something is said or the tone and timing of emails or the timely conduct or appropriate investigation of a complaint. For reasonable performance demands, compare the performance requirements with those contained in a position description or note the reasonable time demands or volumes required. Note any compliance with company policy.
- It is important for your response to be easily readable and understood. It is best to adopt the order contained in the employee’s application. Make sure your statement of facts is easy to read with headings, sub headings, paragraphing, and page numbering.
D. Common Law Claims
If an injured worker can prove that their injury was a result of their employer’s breach of statutory duty, breach of contract or negligence, they may be able to make a common law claim. Workers can only make a common law claim if they follow processes set out in the Act. Most claims are resolved outside the court system following negotiations between the injured worker, their employer and WorkCover.
Generally, when we speak of “common law” we are referring to judge-made law. When we speak of “common law damages” we are referring to judge-awarded damages. In making their decisions, judges must apply the “statute law” (eg. legislation such as the Workers’ Compensation and Rehabilitation Act 2003) as well as the “common law” (ie. previous decisions from higher courts).
In Queensland, injured workers generally have two avenues for compensation. The first is statutory “no fault” compensation (considered above). A person is entitled to compensation if injured at work or in the course of certain defined journeys in connection with that work, irrespective of “fault”. Statutory compensation covers hospital, medical and rehabilitation expenses, the replacement of lost wages and, in some cases, lump sum compensation for permanent disability and care or assistance costs. Statutory compensation payments are finite and do not usually continue after the injured worker’s condition becomes “stable and stationary”.
The second avenue is common law damages. An injured worker usually seeks common law damages when the worker believes that the statutory compensation is inadequate and that the employer is legally liable for the injury. In most cases, the injured worker must choose between a lump sum payment for permanent disability and a claim for common law damages. Unlike statutory compensation, an injured worker is only entitled to recover common law damages if the court finds that the employer was legally liable for the injury. This can be through negligence, breach of contract or breach of statute. An employer is considered negligent if there has been a breach of the “duty of care” owed to workers. A breach of duty of care is usually found in cases where the employer has failed to provide a safe system of work. Common law damages are generally substantially larger than statutory compensation but the injured worker must approve “fault” on the part of the employer. Court proceedings for common law claims must be commenced within three years of the injury occurring.
It is important to remember that WorkCover Queensland is your insurer and once a claim proceeds to the common law stage, an employer has little capacity to influence decisions made by the insurer. WorkCover will usually provide updates to employers as the claim progresses and may invite the employer to attend a settlement conference. Employers and witnesses will be required to provide assistance to WorkCover and its lawyers in defending a claim and giving evidence at any hearing.