I will often talk with people that have suffered injuries in the course of their employment and for various reasons, have delayed applying for Workers’ Compensation with WorkCover Queensland. They may have tried to ‘battle on’ during the initial period after the injury thinking their symptoms would resolve over time only to find their injury has not resolved. Alternatively, their employer may have offered to initially fund any required treatment (so hey, you don’t need to start a WorkCover claim!), only for the offer to be rescinded once the worker has missed their chance to commence a WorkCover claim.
The current state of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) is unfair to injured workers that have ‘missed the boat’ on commencing a statutory claim. While there is a mechanism in the WCRA to allow injured workers to potentially become entitled to pursue common law damages even if they had no accepted statutory claim (s 132A WCRA), there is no mechanism to compensate genuinely injured workers who may not have prospects for a common law claim and have missed their chance to apply for statutory compensation.
Workers who are injured in the course of their employment in Queensland have six months from the date of the incident to apply to WorkCover Queensland to commence a statutory claim (see section 132 WCRA). While there are some scenarios that may allow a worker to commence a statutory claim outside the six-month period, usually this period will be strictly applied.
What happens if you apply in time?
If a worker applies for compensation within the six-month period from the date of the incident and their claim is accepted, they receive all the benefits intended under the WCRA. These include compensation for lost wages, treatment and rehabilitation expenses, compensation for ‘out-of-pocket’ expenses and assistance with returning to work or finding suitable alternative employment.
The statutory claim will continue until a suitable medical specialist certifies that the injured worker’s injury is ‘stable and stationary’ (i.e. the impairment from the injury is not likely to improve even with treatment).
WorkCover will then arrange for the injured worker to be assessed by a suitable medical specialist to determine the level of ‘permanent impairment’ caused by the work-related injury. Within 10 days of receiving the specialist’s report, WorkCover must give the injured worker a Notice of Assessment.
If the injured worker has been assessed with a level of permanent impairment, they will be offered an amount of lump sum compensation commensurate to the level of assessed impairment. In most cases (where the permanent impairment is less than 20%), the injured worker is required to decide whether they accept the lump sum compensation or pursue a common law claim against their employer.
What happens if you apply out of time or don’t apply at all?
In most cases, if an injured worker applies for statutory compensation after the six-month legislative period for doing so, WorkCover will reject the application only on the basis that it was made ‘out of time’. Importantly, if this occurs it is taken to be as if the injured worker never made the application for compensation.
The injured worker misses out on any chance of receiving the benefits described above, including compensation for lost wages, treatment and rehabilitation, out-of-pocket expenses and assistance with return to work.
Section 132A Application
Section 132A of the WCRA allows an injured worker to apply to WorkCover Queensland and request they organise the assessment of permanent impairment for a work-related injury if the worker has not previously made an application for compensation. If WorkCover accept the section 132A application, the worker is assessed for permanent impairment and issued a Notice of Assessment.
Importantly, section 132A (12) of the WCRA states that ‘a decision of the insurer to allow the application does not entitle the worker to compensation for the injury’. ‘Compensation’ is defined in section 9 of the WCRA as any amount payable to a worker under chapters 3, 4 and 4A of the WCRA.
Importantly, this exclusion to compensation also precludes the injured worker from receiving an offer of ‘lump sum’ compensation that they would otherwise be entitled to in their Notice of Assessment.
How the situation is unfair
As it currently stands, injured workers that delay commencing their WorkCover statutory claim outside the six-month deadline from the date of the incident are deprived of any reasonable compensation outside of pursuing a common law claim.
It seems a total injustice that if a person is injured in the course of their employment and if they are outside the arbitrary window of commencing a statutory claim, with no prospects of a common law claim, they are deprived of the chance of accepting a lump sum payment for permanent impairment.
It appears that one of the purposes of the ‘lump sum’ offer system that we currently have is to encourage injured workers to not commence a common law claim if there is a risk, they may fail in establishing negligence against their employer.
However, it appears the Scheme is pushing injured workers who miss the six-month window for commencing a statutory claim into commencing common law claims as their only recourse for compensation. One would think this is both economically disadvantageous for the WorkCover scheme (as the defence costs and damages awards likely far outweigh any denied ‘lump sum’ awards) and unfair to injured workers.
The WCRA should be amended to carve out the ‘lump sum’ compensation mechanism from compensation that is excluded under 132A (12). However, in the meantime, Queensland workers should be aware just how crucial it is that they lodge their application for compensation without delay after they have suffered an injury at work.
I have included below a chart to illustrate the path available to injured workers who apply for WorkCover within the defined six-month window post injury and beyond:
A helpful tip for Queensland workers, most personal injury law firms like Travis Schultz & Partners offer injured workers free, no-strings-attached, initial advice to understand their rights and the WorkCover scheme. It’s best for injured workers to make contact with a trusted lawyer as early as possible after their work related injury to ensure they have a full understanding of the compensation and protections available to them.
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