Sam Warming, Practice Director of Queensland Compensation Lawyers
24 October, 2018.
Under current Queensland law, all employers are required to have accident insurance for any amount for which they may become liable, for injury sustained by a worker, comprising mainly of treatment costs, compensation and damages. The Scheme is established by virtue of the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”).
In order to be eligible to make a claim for benefits under the Act a person must satisfy a number of requirements including, inter alia, that:
This extends not only to injuries which are caused during employment, but also in a number of circumstances sufficiently connected to a person’s employment including a person’s journey between home and work (i.e. a car accident on the way to work).
Once a person satisfies the requisite criterion, he or she has an entitlement to receive statutory benefits, and in many cases, be entitled to receive damages provided they follow the steps required by the Act within the relevant time limits. So what should a person do when they are injured in the course of their employment?
Under the Act (also known as statute), any person who satisfies the requisite tests has an entitlement to compensation. This is known as statutory compensation. In essence, the statutory scheme provides a person with compensation to supplement lost wages, medical and rehabilitation costs and in some cases return to work programs.
For example, in addition to paying for medical treatment, if a person is unable to attend work because of his or her injuries, the Insurer will pay that person:
Once a worker’s injuries have stabilised, marking the end of the statutory compensation phase, a worker has an entitlement to be assessed for permanent impairment. That is, a specialist doctor examines a worker and provides an assessment of his or her injuries. Those injuries are measured by reference to a whole person impairment (“WPI”) reference as a percentage.
This is an objective assessment of a person’s injuries which does not take into account a worker’s personal circumstances.
At this point, a worker must decide whether:
It is important to note that in most cases a worker must choose between accepting a statutory lump sum compensation offer or pursuing a common law claim for damages. If a worker accepts the lump sum payment contained in a Notice of Assessment, he or she will not be able to proceed with a common law claim for damages.
So what is the difference between a common law claim and a statutory claim, and under what circumstances should a worker proceed with a common law claim as opposed to accepting a lump sum offer.
Common Law Damages
Unlike a statutory lump sum offer, a common law claim for damages is a claim wherein a worker seeks damages to restore him or her to the position that they would have been, in so far as money can, but for the accident. In other words, it takes into account his or her actual losses and seeks restitution. This includes, but is not limited to:
In most cases the amount of damages available to a worker under a common law claim far exceed the lump sum compensation amount available to a worker under the statutory scheme (contained in a Notice of Assessment).
Whilst the damages often (but not always) far exceed the compensation payable under a statutory scheme, they require a worker to establish a finding of liability on his or her employer (note this can be found against other parties in certain circumstances). There are many other considerations and time limits which apply. If you find yourself in this position, you should seek formal advice from a lawyer and promptly.
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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