The Core Personal Injuries division of Evolve Legal acts in dependency claims arising from fatalities from work-related incidents. However, the majority of our matters are for the survivors of work-related incidents who have sustained personal injuries, some worse than others, and live in pain, with restriction or with a psychological injury that impacts their day-to-day life, lifestyle and capacity to work.
Accidents and injuries at the workplace can be traumatic and devastating, primarily when they result in long-term physical pain and/or psychological symptoms . Knowing your rights and navigating the legal labyrinth surrounding work-related incidents and injuries is essential.
Within this article, Evolve Legal Senior Associate Janet Clark provides a detailed overview of work-related incident claims and highlights the importance of seeking timely legal advice.
An injured person must act quickly to protect their interests as time limits apply to bringing a claim for compensation for personal injury.
An accident or incident at work affecting a worker’s health can also impact their ability to earn income and live a quality life.
Key Aspects of Work-Related Incident Claims:
1. Time Limits for Claims:
One of the first things an injured person should be aware of is that there are strict time limits for lodging a claim. Generally, a claim must be commenced in a court within three years of the date the action arises, except for where the injured person is under 18 (in which it is 3 years after the injured person turns 18) or child abuse claims. There are also strict time limits for lodging a workers compensation claim with Workcover. Injured workers should consult a legal professional and seek legal advice as soon as possible after their injury to protect their rights to compensation for their work-related injuries.
2. Eligibility and Types of Injuries:
In Queensland, injuries occurring at work, during travel to or from work and on scheduled breaks may qualify for workers’ compensation. These can include physical injuries, psychological trauma, diseases like asbestos or silicosis, and even fatalities.
3. Understanding the Phases:
A WorkCover claim typically has two phases: the statutory and the common law phase.
(A) Statutory Phase
In Queensland, the statutory phase is a no-fault scheme where an injured worker only needs to prove they were a worker within the meaning of the Workers’ Compensation and Rehabilitation Act 2003. This means that an injured worker must prove that (a) they are a worker (which includes contractors) and (b) the injury was caused at work, through work, or their work was a significant contributing factor.
It is important that the incident causing the injury is reported to the employer and a doctor as soon as possible.
Most claims will be made with WorkCover Queensland, though some employers may have different insurances. For example, Gold Coast City Council, Coles and Woolworths, are self-insured, while employers such as Commonwealth Government Departments, Australia Post and Telstra are insured under the commonwealth scheme, known as Comcare.
The sooner a workers compensation claim is lodged, the better. If the claim is not lodged within 6 months of the injury date, the insurer will likely reject the claim because it was lodged out of time. The injured person will then need to apply for a review of the insurer’s decision. There are time limits that also apply regarding lodging a review application and of course, delay in possibly accepting the claim. A Work Capacity Certificate completed and signed by the person’s treating doctor is required to be lodged with the application.
Once a claim is accepted, the injured worker is entitled to weekly/fortnightly wage benefits and reasonable rehabilitation treatment funded by the insurer. There are instances when some employers may try to require the injured person to attend the employer’s nominated doctor and want to be in the appointment with the injured person. An injured person does not have to attend the employer’s nominated doctor or consent to the employer or a representative of the employer being present during the appointment. The injured worker is entitled to privacy during a medical appointment and can demand to see their preferred doctor. In all claims, the workers compensation insurer will not allow a claim to go on indefinitely. Once an injured person’s injuries are stable and stationary (meaning that no further medical treatment in the short term is likely to improve the injury or condition), the insurer will take steps to have the injuries assessed as to the degree of permanent impairment. If the injuries are assessed above 0%(although 0% does not mean there was no injury), the insurer may offer lump sum compensation. If the impairment is less than 20%, the injured worker must choose between accepting the lump sum offer, rejecting or deferring it and seeking common law damages. If the impairment is 20% or more, the injured worker can accept the offer and seek common law damages.
(B) Common Law Phase
Following the statutory phase, an injured person may choose to commence to a common law claim for damages, in which it must be established that the employer was at fault for their injury.
Many common law claims arise from injuries sustained while performing manual handling tasks such as repetitive lifting, pushing, pulling, and/or not rotating duties. For example, there are safe weight limits for lifting at different heights. It is not enough for an employer to place signs around the workplace demonstrating how a lift should be undertaken. The employer not only needs to provide training on correct manual handling procedures, but it also needs to identify hazardous manual tasks, assess the risks, and identify and implement controls to eliminate those risks, such as using mechanical devices, monitoring, supervising and then reviewing the situation.
4. Nuances of Psychological Claims:
In recent times, there has been an increase in work-related psychological claims. These primarily relate to bullying and harassment or performance management processes.
In these types of claims, it is a complete defence to the claim, and the injury will be excluded from the compensation scheme, if the employer can prove that the worker’s injury is the result of reasonable management action taken. However, the management action does not have to be perfect. Examples of reasonable management action can include performance management processes, disciplinary action for misconduct, speaking to a workers about unsatisfactory performance, or asking a worker to perform reasonable duties as part of their job.
Work-related incidents can have lasting effects on an individual’s health and livelihood. This comprehensive guide by Evolve Legal’s Core PI division outlines the legal landscape for such claims in Queensland. Key points include the importance of adhering to claim time limits, usually within three years of the injury, and the nuances of different injury claims, ranging from physical to psychological. The process involves two phases: the statutory and the common law phase, with timely reporting and claim lodging being crucial. A spotlight on psychological claims reveals the challenges in proving the reasonability of actions causing injury. Additionally, the guide emphasises the importance of proper injury assessment for compensation determination. Evolve Legal offers invaluable support with its expert team of personal injury lawyers, ensuring victims’ rights are protected and they receive just compensation.
The Role of Evolve Legal in Navigating Work-Related Incident Claims:
Evolve Legal’s team of personal injury lawyers, including Senior Associate Janet Clark, are experts in this field. They bring experience and insight into the complexities surrounding these claims. Whether it’s understanding the nuances of the law, seeking fair compensation, or representing you in court, Evolve Legal ensures that your interests are protected and adequately compensated.
If you or a loved one has experienced a workplace incident, don’t navigate this challenging time alone.
Contact Evolve Legal’s personal injury lawyers today, and let’s ensure that your rights are upheld and that you receive the justice and compensation you deserve.
Posted in: Personal Injury
October 30 2023