Will my employer have to pay for my workers' compensation claim or my claim for Common Law Damages for my work injury?
A lot of workers are concerned that when they make a claim for workers' compensation or Common Law Damages for a work injury, their employer will have to pay for their claim. This is actually not the case. Workcover Queenslandii is the insurer for employers in work injury claims in Queensland. As such, it is actually Workcover Queensland who handles these claims and meets any payments to be made in response to them.
There are however some very limited cases in Queensland where an employer is what we call a "self-insurer". This is where an employer has established its own workers' compensation scheme and meets any payments to injured workers they are obligated to pay under the Workers' Compensation & Rehabilitation Act 2003, itself. These self insurers have the same obligations in respect to workers' compensation claims and Common Law Damages claims for work injury as Workcover Queensland. There are only a handful of self-insurers in Queensland and they are restricted to the larger corporations operating in Queensland (e.g. Woolworths, The Toll Group, Arnotts etc).
How do I bring a Common Law Claim for Damages?
Under workers' compensation legislation in Queensland, if you have had a workers' compensation claim, and you wish to proceed with a Common Law claim for damages for your injury, you need to be very careful what steps you take when your workers' compensation claim is coming to an end. In Queensland, the majority of injured workers are required to make an election at the end of their workers' compensation claim as to whether they wish to proceed with a Common Law claim for damages in respect to their work injury. This occurs when the worker receives a Notice of Assessment of their work injuries from Workcover Queensland.
If you take the wrong step when responding to the Notice of Assessment, you could lose all rights to proceed with a Common Law claim for damages and miss out on significant compensation. It is extremely important that you contact The Personal Injury Lawyers for legal advice prior to taking any steps in response to the Workcover Notice of Assessment so this does not happen to you.
Many workers think that, unless there has been a statutory workers' compensation claim for the injury, they cannot pursue a common law claim for damages. This is incorrect. A worker who has suffered injury in the course of their work is quite entitled to sue for damages for their work injury if it has been caused by the negligent act or ommission of their employer, whether they have previously brought a workers' compensation claim for the injury or not.
The Workers' Compensation & Rehabilitation Act 2003 and associated Regulations govern the procedural requirements for bringing and pursuing a Common Law Claim for Damages, as well as the awards of damages in relation to work injury claims in Queensland. Navigating the provisions of the Workers' Compensation & Rehabilitation Act 2003 and Regulations can be quite complex and it is therefore important that you obtain legal advice with respect to what compensation entitlements you may have under such legislation. The Personal Injury Lawyers will be able to provide you with this advice.
How will my Common Law Claim run and how long will it take?
As indicated above, if you decide to proceed with a Common Law Claim, there are a number of steps that need to be taken under workers' compensation legislation before your claim can proceed into the Court realm. The purpose of this is so that you and Workcover Queensland (or the self-insurer) can try to resolve your claim without the need to progress to litigation (bringing a claim in a Court of Law).
The "pre-court" steps commence with the service of a document, called a Notice of Claim for Damages, on WorkCover Queensland and the employer. After WorkCover has time to investigate your claim and the parties are able to gather information about the extent of your injuries, your claim proceeds to a settlement conference, where you have the opportunity to try to resolve your claim. If your claim does not settle at this conference, your claim then proceeds to litigation, which is commenced by the filing of a Claim and Statement of Claim in the appropriate Court.
Once you commence your claim in the Court, you do not immediately move to a trial. The Court process encourages parties to try to resolve claims through Alternate Dispute Resolution (ADR) prior to moving to a trial. If the parties agree, your claim may proceed to a Mediation prior to the matter being set down for trial. At the Mediation, an independent mediator will try to bring you and the workers' compensation insurer (WorkCover or the self-insurer) to a fair and reasonable settlement of your claim. There are also opportunities for the parties to try to resolve the claim through written offers being exchanged.
If you are unable to settle your claim at the Mediation, then your matter is set down for trial and proceeds to trial at the next available hearing date.
Depending on the status of your injuries at the time of commencing your Common Law claim and the liability and medical investigations that the parties need to pursue before they are ready to proceed to a settlement conference , it can take from approximately 6 to 12 months before the initial settlement conference takes place. If your claim does not settle at the settlement conference, then the Mediation will usually occur within six to nine months of the initial settlement conference. If the Mediation is unsuccessful, then your claim will usually be set down for hearing within approximately six to nine months of the Mediation, depending on the availability of hearing dates. Once the hearing takes place, it can take a number of months before a decision is handed down.
Get our accredited Lawyers to assess your claim for free. Contact us now
If you have been injured as a result of any vehicle such as car, bike or boat accident, or whilst at work, on holiday, or in many other situations you believe was caused by someone else's wrongful act or negligence, you may be entitled to compensation. Even if you think your actions may have contributed to your injury, you may still have a claim well-worth pursuing. Chat, call, email, or let us assess your claim, just press the button below. There is no cost, and no obligation.