Sam Warming, Practice Director
2 November, 2018
We often have people contact us asking about whether or not they have time to make a claim after being injured in the course of their employment. Our response all too often is, unfortunately not.
This article only considers physical injuries, and limited time limits and circumstances contemplated by the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“Act”), There are a number of time considerations which have not been mentioned in this publication. This article does not consider common law claim time limitations. Formal legal advice should always be sought.
The Act provides a no-fault scheme which entitles a worker to receive statutory compensation subject to that worker satisfying a number of requirements the Act. Generally speaking, this requires that the person is considered a worker, the incident which caused the injury occurred in Queensland and that the person’s employment was a significant contributing factor to the person’s injuries.
In addition to a claim for statutory compensation, a person may be able to make a claim under the common law provided, inter alia, that the person’s injuries were caused, at least partly, by the negligence of his or her employer. Please see Overview of the Scheme for a brief overview of the Workers’ Compensation and Rehabilitation Act 2003.
Statutory Scheme Application
An application for statutory compensation under the Act is generally only valid and enforceable if the application is lodged within the 6-month period following the date on which the entitlement to compensation arises. Generally speaking, an entitlement to compensation is deemed to arise on the day that the Claimant is assessed by a doctor.
In order to make a claim, a claimant is required to give the insurer:
Once a Claimant makes an application for statutory compensation, the insurer must notify the Claimant of its decision within 20 business days after the application is made, failing which, an insurer must provide reasons for not making a decision.
If an application for a statutory benefit or statutory compensation is rejected by WorkCover, an Application for Review must be made within 3 months from the Claimant receiving written notice of the relevant decision. Under special circumstances, the Regulator may extend that period.
The Regulator has 25 business days from the date it receives the Application for Review to either vary, confirm or set aside the decision by WorkCover. Under section 546 of the Act, in circumstances where the Regulator fails to make a decision within the 25 business days of receiving a worker’s application for review, a worker may appeal directly to the Queensland Industrial Relations Commission. In circumstances where the Regulator confirms WorkCover’s decision, an appeal can be made to the Industrial Relations Commission pursuant to section 550 of the Act. Any appeal against the regulator’s decision must be lodged within 20 business days from the date he or she receives the Regulator’s decision.
Lump Sum Compensation
Once a claimant’s injuries have stabilised, the claimant has a right under section 178 of the Act to be assessed for permanent impairment. Provided that the claimant has sustained a degree of permanent impairment as a consequence of the work-related injury, he or she is entitled to receive lump sum compensation from the insurer. There is no time limit for applying for lump sum compensation, provided that the insurer originally accepted liability for the claimant’s injury(s).
After receiving an assessment of permanent impairment, the claimant has 20 business days after being given the Notice of Assessment to request the impairment be reassessed. Within 20 business days of receiving the Notice of Assessment, the Insurer will often cease paying any further benefits to a claimant.
Common Law Claims
If a claimant receives a notice of assessment that provides less than a 20% whole person impairment (“WPI”), he or she must elect to either:
A worker who receives less than 20% WPI cannot do both.
If a Claimant wishes to pursue a common law claim for damages, he or she must not accept that offer and lodge what is known as a Notice of Claim for Damages Form pursuant to section 275 of the Act. To avoid any doubt, an acceptance of a Notice of Assessment offer releases the employer from any further liability.
A decision on whether or not to accept a Notice of Assessment offer from WorkCover is a major decision which requires consideration be given to a number of issues. The wrong decision can have a serious impact on a person’s life. When a worker receives a Notice of Assessment prompt advice should be sought from an experienced lawyer with experience in this field.
Section 275 Notice of Claim for Damages
Ordinarily speaking, a worker cannot pursue a common law claim until he or she has received a Notice of Assessment as noted above.
Once a worker has received a Notice of Assessment, he or she is required to follow the procedural steps as set out in the Act. Firstly, this requires that a Notice of Claim for Damages form is lodged in accordance with section 275 of the Act. The Act sets out a number of procedures and obligations that both the worker and WorkCover must comply with including attending a compulsory conference (meeting between the parties to attempt to resolve the matter).
If a matter does not resolve at a compulsory conference, the worker can commence proceedings in the appropriate Court.
Statute of Limitations Act 1974
Section 11 of the Limitations of Actions Act 1974 (Qld)provides that an action for damages in personal injury shall not be brought after the expiration of 3 years from the date on which the cause of action arose. In essence, this means that if a claimant has not commenced proceedings in the appropriate Court within 3 years from the date the cause of action arose, a claimant will in almost all cases be barred from bringing a claim.
So if you do not file the appropriate documents in Court within 3 years and your claim has not been resolved, a worker will be barred from bringing a claim. This may need to be done well before steps under the statutory and common law phase have been completed. A failure to take the right steps can be fatal.
As can be seen from reading this article, there are a number of crucial and complicated steps that must be followed and complied with at certain times. In any case , you should always contact a lawyer and seek formal advice.
In addition to meeting circumstantial requirements, there are a number of time limits which apply.
Please note all articles on this website are general in nature and intended for information purposes only. Under no circumstances should anything on this website be relied upon. Please refer to our Terms and Conditions for further information. Please note that Personal Injury law is a complicated area of law with many significant and complicating circumstances which are not considered by this article or this website. Should you find yourself in a situation relevant to this article you should always promptly seek formal legal advice.
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