If you suffer injury in the course of your work, and your work is a significant contributing factor to your injury occurring, you will be entitled to claim for workers' compensation benefits under the Workers' Compensation and Rehabilitation Act 2003.
This will be the case even if your injury has occurred through no fault of your employer, because the workers' compensation scheme in Queensland is what we call a "no-fault" scheme. The benefits that you will receive as part of this claim include payment of reasonable medical and rehabilitation expenses for the treatment of your work injuries, and, where you are unable to work because of your injury, wage benefits.
Wage benefits are paid at 85% of average gross weekly wages but will reduce over time (for example, to 75% after 26 weeks). In some cases where an Enterprise Bargaining Agreement applies to an employer, the worker is entitled to their normal wages during workers' compensation claims.
For more information about what statutory benefits you are entitled to click on the following link: Workers' Compensation Benefits.
There are some special cases where the entitlement to workers' compensation benefits are a little more complex. Such cases include:
- Claims for pure psychiatric injury arising in the course of employment;
- Industrial Deafness claims; and
- Fatal accident claims.
When we talk about pure psychiatric injury claims, we are talking about a claim where the worker suffers from a psychological condition and the work event has not caused physical injury. For example, where a worker is involved in a bank hold up in the course of their work, or they witness a co-worker seriously injured or killed in the course of their work, or they are subjected to bullying and harassment in their work, and these events have an adverse psychological affect on them, resulting in a psychiatric injury.
With pure psychiatric injury claims, a worker's claim can be rejected, even though their injury may have arisen in the course of their employment, and employment is a significant contributing factor to the injury occurring. Under the Workers' Compensation and Rehabilitation Act 2003, WorkCover has a right to reject a pure psychiatric injury claim where the injury is found to have resulted from "reasonable management action undertaken in a reasonable manner" by the employer.
An example of this is where a worker applies for a promotion but does not win the role and suffers a psychiatric injury as a result (for example, the worker becomes depressed). If it is shown that in rejecting the worker's application for promotion, the employer has acted in a reasonable manner, then the worker is not entitled to claim workers' compensation benefits for their psychiatric injury. To read more about this, click on the following link: WorkCover Queensland: pure psychiatric injury claims by workers.
There are of course rights of review of rejections under the relevant workers' compensation legislation (see below).
Common law damages claims for pure psychiatric injury are most often quite complex. This is because to succeed in such a claim, it is necessary for the worker to prove that it was reasonably foreseeable by the employer that the worker was, on the balance of probabilities, likely to suffer a diagnosable psychiatric injury as a consequence of the work stress (or stressors) that are said to have caused the injury.
This can be very difficult, as often by the time the employer is placed on notice that the work stress is impacting on the worker's psychiatric state, the injury has already occurred. Similarly, in cases of co-worker bullying and harassment, often supervisors are not made aware of the bullying occurring until it is too late and the injury has already been sustained.
It is therefore very important for a worker to inform their supervisors or managers of any work stressors or instances of bullying and harassment in the workplace, which may be impacting upon them psychologically, as soon as possible.
Compensation claims for Industrial Deafness
In the case of Industrial Deafness, a worker is only entitled to make a workers' compensation claim for loss of hearing as a consequence of their work where their hearing loss is greater than 5%. Every three (3) years a further claim can be made, but any assessment of hearing loss in previous claims will be taken into account. To learn more about workers' compensation claims for industrial deafness, click on the following link: Industrial Deafness claims by workers.
Fatal Accidents and Dependency Claims
In the case of fatal accidents occurring in the workplace, dependants of the fatally injured worker are entitled to statutory payments and assistance with funeral expenses under the Workers' Compensation and Rehabilitation Act 2003. To be entitled to claim, you must meet the criteria of a dependant (whether partial or total) under the provisions of that Act. To find out more about this, click on the following link: Claims by Dependants in cases of fatal work accidents or injury.
Common law claims for damages can also be brought where the fatal injury to the worker has been caused by the negligent act or ommission of another person. These claims are called Dependency Claims and provide compensation to the dependants of the worker. Any dependency payment received by the dependants under the workers' compensation scheme however, has to be repaid to the workers' compensation insurer from any damages received as a result of the Common Law claim.
Close relatives of the fatally injured worker may also have claims for nervous shock in some cases. A nervous shock claim arises where a close relative such as a spouse (whether defacto or married), fiance, parent, sister, or brother of the fatally injured worker, suffer psychiatric injury as a consequence of the death of the worker.
The psychiatric injury suffered must be over and above a normal grief reaction. For instance, a spouse may develop a major depressive disorder as a consequence of the shock of the sudden death of the worker, or due to the way in which the worker suffered his fatal injury, resulting in the spouse being unable to work or care for her children.
To determine more about your rights to workers' compensation as a worker or dependant, you should contact us at The Personal Injury Lawyers who may be able to assist with your claim or enquiry.