Warning: Injured workers who do not bring a workers' compensation claim may be significantly out of pocket
If you are injured in the course of your work, then you are entitled to claim workers' compensation benefits. These benefits include funding medical treatment and rehabilitation costs and paying wages lost due to the workplace injury. The workers' compensation insurer is obligated to fund these benefits until the worker's injury is deemed stable and stationary by treating doctors. But the compensation entitlement extends past these treatment and wage benefits, and a lot of injured workers are not aware of this.
Permanent impairment and lump sum compensation for work injuries
If you sustain a work injury which results in permanent loss of function to your body, then you are also entitled to what we call "lump sum compensation". The amount of this lump sum compensation depends on the extent of the injury and the permanent impairment suffered because of it.
This lump sum compensation is calculated on what we call "permanent impairment". Permanent impairment of the body is basically the degree of function loss suffered by an injured worker because of their work injury, taking the body as 100% functioning. At the end of your workers' compensation claim, you can ask the workers' compensation insurer for your work injury to be assessed for permanent impairment. If you are assessed by medical specialists to have sustained permanent impairment for your injury over 0%, you will be entitled to lump sum compensation.
For example, say Joe hurts his back at work whilst bricklaying. He brings a workers' compensation claim with WorkCover Queensland, is off work for two months, and has physiotherapy treatment over that period. Joe receives his workers' compensation benefits from WorkCover, including payment of his lost wages and the physiotherapy treatment recommended by his doctor. At the end of the two months, Joe is told by his treating doctors there is nothing more they can do for his back injury that will improve the injury.
Joe tells his doctors that he still has a lot of problems with his back injury - he cannot sit for long periods without pain, he has trouble sleeping with pain, he cannot bend down or reach up without pain, he cannot squat or lift anything heavy, he has problems climbing and descending stairs and walking on soft ground etc. But the doctors tell Joe, even though they know he has ongoing problems with his back, there is nothing in terms of treatment they can do for him to improve his injury.
Because Joe's injury has been assessed by doctors as being stable and stationary, WorkCover Queensland accordingly advises Joe that they will be closing his workers' compensation claim, because their obligation to meet his statutory benefits has come to an end. But Joe does still have rights to further compensation. Joe can ask for his back injury to be assessed for permanent impairment to see if his work injury has resulted in permanent injury and possibly achieve further compensation.
So Joe does this. WorkCover, in response to Joe’s request, sends Joe to see a medical specialist who assesses Joe as suffering a 10% degree of permanent impairment (DPI) for his work injury. Joe then receives a Notice of Assessment from WorkCover setting out this assessment and offering Joe $30,000 in lump sum compensation for his permanent work injury.
Important information for anyone injured at work and seeking personal injury compensation or damages
There are however some very important things that Joe needs to know about WorkCover’s offer to pay lump sum compensation:
- Firstly and most importantly, if you have been injured at work because of negligence or the wrongful act or omission of your employer or co-worker, then you may very well be entitled to bring a lawsuit and receive significant common law damages for your injuries. Such a lawsuit is called a "Common Law claim". When you bring a Common Law claim, you are claiming for the loss and damage you suffer because of your injuries which includes pain and suffering and loss of amenities of life, loss of income (past and future), out of pocket expenses, future medical expenses, care and assistance required because of your injuries, lost superannuation (past and future), as well as interest on lost wages and out of pocket expenses. The Common Law claim is a totally separate claim to your workers' compensation claim, however, the claim is still met by the workers' compensation insurer. If you have a case to bring a Common Law claim for your work injury, then you need to be very careful when responding to any lump sum offer of settlement, because if your injury is assessed at less than 20% degree of permanent impairment, then you cannot take the lump sum offer and still sue for damages for your work injury. You must make a choice - you cannot do both. So if you choose wrongly or respond incorrectly to the offer of lump sum compensation from the workers' compensation insurer, you could end up losing your right to sue for significant damages for your injury.
Irrevocable elections and Common Law claims for work injuries
- If you do achieve a degree of permanent impairment (DPI) of 20% or more for your work injury however, then you can take the lump sum offer and sue for damages - you can do both. But be aware - physical and psychiatric injuries are treated separately. They are not added together to achieve a 20% DPI. If Joe was assessed at a 10% DPI for his back injury and 20% DPI for a psychiatric injury he developed because of the ongoing pain and difficulties he was experiencing with his back injury, then he could only take the lump sum offer relating to his psychiatric injury. He cannot take the offer relating to his back injury, as that injury was assessed at less than 20%. It seems ridiculous to separate the injuries and lump sum offers in this way, but it is the law in relation to lump sum offers. So, if you receive a Notice of Assessment from WorkCover or a self-insurer, at the end of your workers' compensation claim, it is very important that you contact us here at The Personal Injury Lawyers as soon as possible so that we can properly advise you on the appropriate steps to take to ensure you do not miss out on significant damages by making an incorrect decision or response.
The 6% threshold rule and how it impacts your right to injury compensation and Common Law damages
- If your injury occurred between 15 October 2013 and 30 January 2015, then you can only bring a Common Law claim if you reach a DPI of more than 5% for your work injury. In other words, you must achieve a DPI of at least 6% if you wish to bring a Common Law claim for your work injury. This is termed "the 6% Rule". If you do not achieve a DPI assessment of more than 5%, then you cannot bring a Common Law claim. You can still take the lump sum offer made for your DPI assessment if it is over 0%, but, you also need to be aware of an entitlement to what is called "additional lump sum compensation". This is an additional lump sum amount specific to those who do not achieve a 6% DPI for their injury, and their injury has been caused by the negligence or wrongful act or omission of their employer or a co-worker. The purpose of this additional compensation is to try to give some relief to those injured workers who, if it were not for the 6% rule, would be able to pursue a Common Law claim for their workplace injury and achieve proper compensation for their injuries. This additional lump sum compensation will only be awarded if it is accepted by the workers' compensation insurer that, it is more probable than not, the worker would have been successful in their Common Law claim if they had been able to bring one. So it is important a worker does not accept any lump sum compensation offered at first instance as in doing so, they may be missing out on this additional lump sum compensation, or the right to pursue a Common Law claim.
Injured workers can appeal their DPI assessments but strict time limits apply
- If you are a worker who is subject to the 6% Rule referred to above, you should also be aware that you are not bound by the workers' compensation insurer's initial assessment of your injury at less than 6%. There are appeal rights to have your injury reviewed and reassessed and it is very important that you see us at the Personal Injury Lawyers when you receive any Notice of Assessment so that we can properly advise you as to what steps you need to take to ensure you are not missing out on significant compensation or damages. Remember, time limits apply to appeal rights, so you need to contact us as soon as possible after receipt of your Notice of Assessment from WorkCover or the self-insurer.
Warning - failure to make a workers' compensation claim within six months of your work injury may mean you miss out on significant compensation
- Finally, the other very important point that injured workers need to be aware of is that if you are injured at work and you do not put in a workers' compensation claim within six months of your injury occurring, then, unless you have very good reasons as to why you did not bring a workers' compensation claim earlier, you will not be entitled to any offer of lump sum compensation or additional lump sum compensation if you are subject to the 6% Rule. You are however still entitled to bring a Common Law claim for your work injury if there has been some negligence or wrongful act or omission on the part of your employer or a co-worker which has resulted in your work injury occurring. However, in some cases, workers do not have this Common Law claim and their only compensation for a permanent work injury is through that lump sum compensation or additional lump sum compensation. This is particularly so in cases where the 6% Rule applies. If a worker does not achieve 6% for his or her DPI and therefore cannot bring a Common Law claim, then the only compensation he or she has (apart from the treatment costs and wages being reimbursed), is via the lump sum compensation, and possibly additional lump sum compensation, if it applies to their case.
- It is very important that workers are made aware of this - that should they suffer an injury at work, they should always put in an application for workers' compensation, even if it is just to have the application accepted and no treatment costs or wage benefits are sought. This will certainly be of help if there are issues with their work injuries later on, and they do not have the right to Common Law damages, then they will still have the right to seek lump sum statutory compensation. This is particularly important in cases where there is no Common Law entitlement under the 6% Rule as referred to above.
- If you fail to bring a workers' compensation claim within six months of your work injury occurring, you can later apply to have your workers' compensation claim accepted outside the six month period. However, as stated above, you must have a very good explanation as to why you did not bring your workers' compensation claim earlier and within the six month period required under the legislation.
If you have sustained an injury at work, seek out good personal injury lawyers to advise you properly
Having regard to all of the above information about lump sum offers of compensation from the workers' compensation insurer, and the many twists and turns associated with such offers, you can most likely understand now how important it is that you seek out good personal injury lawyers who are experts in the field of personal injury law, workers' compensation and work injury Common Law claims. Not doing so could very well result in you losing significant compensation and damages if you are incorrectly advised.
We at The Personal Injury Lawyers are experts in the field of work injury and workers' compensation claims, with some of our solicitors having been trained by the workers' compensation insurers themselves. We can provide you with the advice you need to ensure that any claim you may have for personal injury compensation or damages when you have sustained a work injury is protected.
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