What's the difference between workers' compensation claim & a common law claim for damages?
In Queensland, a legislative scheme exists to assist workers injured in the course of their employment to achieve compensation for their injuries. This scheme is established and governed by the provisions of the Workers' Compensation & Rehabilitation Act 2003.
The purpose of the scheme is to ensure that injured workers in Queensland receive assistance with their medical bills and wages whilst they cannot work due to their injuries, and also to afford an injured worker some compensation for their injuries where the injury is likely to result in ongoing debilitation.
Under this workers' compensation scheme, it is compulsory for all employers in Queensland to hold workers' compensation insurance for injuries their workers may sustain in the course of their employment. The scheme also provides for the establishment of workers' compensation insurers for this purpose.
Who is the insurer for injured workers in Queensland?
In Queensland, the most prevalent workers' compensation insurer is Workcover Queensland. Workcover Queensland is a quasi-governmental body and as such is the workers' compensation insurer for most Queensland businesses, but it is not the workers' compensation insurer for all businesses operating in Queensland. Some of the larger businesses in Queensland have established their own workers' compensation insurance under the scheme, and these employers are called "self-insurers".
There are presently 27 self-insurers established under the workers' compensation scheme in Queensland, including such businesses as Toll Holdings, Coles, Woolworths, Myer, Qantas, and some local Government Councils to name a few. Under the Queensland workers' compensation scheme there are 2 types of compensation claim a worker may have when they suffer injury in the course of their employment. The first claim is a workers' compensation claim, more commonly known as a "workers' comp claim". It is also known as a "Statutory Claim" because it is a claim established by statute or legislation.
A Queensland worker's right to workers' compensation is based on a "no fault scheme"
A workers' compensation claim is based on a "no fault scheme". What this means is that, it is irrelevant whether the work injury was caused by the workers' own negligence or the negligence of the employer or a co-worker. As long as the worker's employment was a significant contributing factor to the injury occurring, the worker will be entitled to claim workers' compensation benefits (also known as"statutory benefits"), regardless of whether the worker's own actions caused or contributed to his work injury or not.
It is only in very exceptional circumstances that a worker will not be entitled to claim for workers' compensation benefits when injured in the course of their employment in Queensland. It should also be remembered that workers' compensation claims are also available to workers who sustain injury whilst travelling to or from work, or during a work break. Benefits paid during a workers' compensation claim include funding for medical treatment and rehabilitation costs, as well as wage benefits whilst the worker is unable to work due to the work injury. In some cases of very debilitating injury, the costs for care and assistance are also funded in a workers' compensation claim.
Additionally, where the worker's injury is found to be permanently debilitating, the worker may be entitled to an amount of lump sum compensation at the end of their workers' compensation claim. These lump sum compensation amounts are set by legislation and calculated under a legislated formulae. They are usually quite minor in nature and do not properly or fully compensate a worker for all the medical expenses, loss of earnings, care and assistance costs, medical and ergonomic aids, loss of superannuation payments etc that a worker will most often sustain from a work injury.
A worker's comp claim provides limited statutory compensation
A workers' compensation claim only runs for a limited period of time. The workers' compensation insurer, is only obligated to meet an injured worker's medical and rehab costs and his wage benefits until the worker's injury is stable and stationary. This occurs when medical experts consider there is no further treatment that can be provided to the worker which will improve the worker's injury.
When this occurs, then the workers' compensation insurer's obligation for payment of statutory benefits cease and the workers' compensation claim ends. So a workers' compensation claim as described above is the first type of claim a worker may have when injured in the course of their employment in Queensland.
Unlike a workers' comp claim, a Common Law Claim for Damages provides proper compensation for all loss and damage
The other type of claim a Queensland worker may have when they suffer injury in the course of performing their work, is what is termed a "common law claim for damages", or what most people know as a "law suit". Once again, as in the case of a workers' comp claim, it is the workers' compensation insurer who has to meet this claim.
Unlike a workers' compensation claim, in the case of a common law claim for damages for work injury, the worker is entitled to claim for all the loss and damage sustained as a result of their work injury. This includes both past and future losses. This will normally include claims for loss of past and future earnings, past and future medical expenses, loss of past and future superannuation benefits, past and future medical and ergonomic aid costs and past and future care and assistance costs.
So as you can see, it is only through a common law claim for damages that a worker will achieve proper compensation for all the loss and damage sustained as a result of their work injury. This is the primary difference between a workers' compensation claim and a common law claim for damages and it is a significant one. But there is also another significant difference between these two types of claims.
Employers in Queensland have a very high duty of care to keep workers safe
Unfortunately, it is not in every case of a work injury that a worker will have a claim for common law damages. Unlike the "no fault scheme" applying to a workers' compensation claim, a worker will only be able to pursue a claim for common law damages if the work injury has been caused wholly or partly by the negligence of the employer or a co-worker. So unless a worker can show that his injury has been the result of the wrongful act, negligence or omission of their employer or a co-worker, then the worker will not have a common law claim to pursue.
However, in saying this, it should be noted that in the majority of work injury cases, the work injury is usually found to be the result of the negligent act of a co-worker, or the employer's failure to provide the worker with a safe workplace or system of work, or to provide proper instruction, training or supervision to its workers. And it does not matter if the worker thinks that in some way they may have contributed to the work injury occurring. This does not mean the worker does not have a common law claim for damages worth pursuing.
At The Personal Injury Lawyers, we see a lot of cases where injured workers blame themselves for their work injuries occurring, when in fact, it is not actually their fault at all, or their input toward the work accident occurring is minimal. Many of these workers tell us that because they felt in some way responsible for their work accident, they did not believe they had a claim to pursue, when in fact they do have a claim and often a significant one, and one that they usually need to pursue to protect both themselves and their loved ones.
At law, an employer has a very high duty of care to ensure the safety of its workers whilst carrying out their work, and when workers are injured whilst simply going about their work duties as they would normally do every day, then it is usually the case that the employer is in some way at fault for that injury occurring - usually because the employer's workplace safety policies, practices and procedures are lacking in some way.
If you suffered your work injury between the dates 15 Oct 2013 and 30 Jan 2015 then your Common Law claim is subject to a 5% impairment threshold - PIL works with you to achieve the 5% DPI threshold to bring a Common Law claim
Another hurdle that some injured workers have to traverse in Queensland before they can bring a common law claim for damages for a work injury, is the recently introduced 5% impairment threshold. On 15 October 2013, amendments to Queensland workers' compensation legislation introduced the rule that for a worker to have any entitlement to pursue a common law claim for damages against their employer for work injury in Queensland, they must have sustained an injury resulting in a degree of permanent impairment (known as the "DPI") of more than 5%.
This means that an injured worker in Queensland must be assessed by the workers' compensation insurer as having sustained a degree of permanent impairment from their work injury of at least 6% before they have any entitlement to pursue a common law claim for damages against their employer. This assessment of DPI is performed once the worker's injury is stable and stationary and is set out in a document called a "Notice of Assessment" which the workers' compensation insurer provides to the injured worker either at the end of the worker's claim for statutory benefits, or at the specific request of the injured worker.
If the 6% degree of impairment is not achieved at first assessment, then there are appeal rights for a worker to have the assessment reviewed and reassessed. Only workers whose work injury occurred during the period 15 October 2013 to 30 January 2015 are subject to the 5% threshold rule. This is because the Labour Government repealed the 5% threshold legislation upon taking power in Queensland as of 31 January 2015. If you are subject to the 5% threshold to bring a Common Law claim, we will work with you to try to achieve the 6% threshold you need to bring your Common Law claim and get the proper compensation you deserve for your work injuries.
As you can see from the above information, pursuing a claim for work injury in Queensland is a very complex matter. And this is why it is very important for anyone who sustains such an injury in the course of their work, to seek legal advice from those with the legal expertise and knowledge to help them take the appropriate course to achieve all of their entitlements and to ensure that they are not missing out on significant compensation that they are entitled to under the workers' compensation scheme.
The Personal Injury Lawyers specialise in personal injury claims, including work injury claims. If you have sustained an injury at work, then you need to contact us to discuss your case as soon as possible.
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