QLD Workers Compensation Advice

Transcription

1 QLD Workers Compensation Advice

2 There are two avenues of compensation available to you when you suffer an injury at work: (i) (ii) Statutory Claim for benefits under the WorkCover Queensland Act 1996; and Common Law Claim. Statutory Claims (i) If you are a worker and suffer a work related injury which requires medical treatment and/or you are unable to return to work, every employer in Queensland must hold a policy of insurance with WorkCover which covers you for payment of your medical expenses and loss of wages. In order to lodge a claim, both you and your employer must complete an application for compensation claim form with WorkCover within 6 months of the date of injury occurring. Although WorkCover has discretion to accept claims outside this time period, failure to lodge the Claim Forms within this 6 month period could result in your claim being rejected. There is no need to prove fault on the part of your employer in this type of claim; (ii) If your claim is accepted by WorkCover you will be entitled to be paid benefits, which include payment of weekly loss of wages, medical and rehabilitation expenses; (iii) Quite often there will be a dispute over whether WorkCover are required to pay you these benefits. The most common dispute arises out of conflicting medical opinions as to whether the condition you are suffering from is directly related to the initial work injury which gave rise to your claim. WorkCover has an in-house doctor who looks carefully at the medical evidence supplied by your treating doctors to determine whether the claim is in fact work related. They also have a panel of doctors who they may send you to for a so-called independent medical examination. If these doctors determine that your condition is not related to the initial work accident then they often make a decision to discontinue your payment or deny your claim; (iv) If you are dissatisfied with such a decision of WorkCover, you have the right to apply to Q-Comp 1

3 for a review of the decision. Q-Comp is an independent body that reviews the decisions made by Queensland s workers compensation insurers. The request for review must be made within 90 days of WorkCover s decision notice. There are no costs associated with applying to Q-Comp for a review of the decision. If you are dissatisfied with the decision of Q-Comp, you may then appeal to the Queensland Industrial Relations Commission (QIRC) within 20 business days of Q-Comp s decision. Your matter will then be listed for a hearing and after hearing evidence the Magistrate then makes the decision is to whether your payments should be reinstated or your claim honoured. The decision of the QIRC is final; (v) Sometimes WorkCover will refer your claim to a Medical Tribunal to determine whether you have a claim. Apart from referring their decision to the review panel, its decision can not be appealed against; (vi) If as a result of the injuries you sustained in the accident you are left with a permanent disability or work related impairment (WRI) you may be entitled to a lump sum payment from WorkCover. This can either be done by an offer from WorkCover or after a hearing before a Medical Tribunal to assess your disability. (vii) If WorkCover offer you a lump sum entitlement in lieu of your weekly benefits and medical expenses you are required to make an irrevocable election as to the future conduct of your claim. You have 28 days to respond to WorkCover, either way accepting, rejecting or deferring the offer. At this stage, all of your benefits cease. (viii) If you are assessed as having a work related impairment of more than 6% but less than 20%, you must choose between :- Accepting the Statutory Lump sum compensation offered by WorkCover; OR Seek Common Law damages from your employer. If you are assessed as having a work related impairment of 20% or more, you have the right to :- Accept the statutory lump sum compensation offered; AND Seek Common Law damages from your employer. Curently, if you are assessed as having 5% or less impairment, you cannot pursue a common law claim. *(Please note that the current 5% threshold is likely to be repealed by the new QLD Labor Government) IT IS CRUCIAL THAT YOU OBTAIN LEGAL ADVICE BEFORE ACCEPTING ANY LUMP SUM PAYMENT! Possible Common Law Claim (i) You are entitled to bring a common law action against your employer for negligence or breach of Statutory duty or contract of employment if you can establish your injury was caused by the fault of your employer and/or an unsafe system of work. 2

4 (ii) Although there is no restriction on the amount of damages you can claim under this type of case, WorkCover are the compulsory insurers for common law actions of all employers in Queensland and they are very aggressive in their attitude towards these types of claims. Before the claim can proceed to Court every case has to complete the necessary pre-proceedings process that requires both parties to attempt to settle the claim and bring it to an early resolution. This means that the costs of pursuing the claim are high and we must be certain that the amount of money that you can recover for compensation is enough to warrant a Notice of Claim Form being lodged. Although you may recover a limited amount of costs in certificate injury cases, you should proceed on the basis that little or no costs will be recovered and you will be responsible for the total costs and disbursements occurred by your solicitors. This advice is even more relevant where you do not have a Certificate Injury. For Statutory Benefits (a) You and your employer must complete and lodge a Claim Form with the WorkCover within six months of the date of the accident; (b) If WorkCover discontinues your payments, refuses to accept a claim or makes a decision that you wish to dispute, you can ask WorkCover to review the decision (within 3 months) and appeal to an Industrial Magistrate if you are not happy with the review (within 28 days). Common Law Claim There is a 3 year limitation period to lodge a Notice of Claim Form for a common law claim against your employer, which commences from the date of your accident or the date the injury first occurred. WorkCover payments are refundable from any Common Law damages. Also, if you are permanently incapacitated and are on an invalid pension or sickness benefits the recovery of damages may preclude you from getting future Centrelink payments for a period of time after your claim has been settled or finalised. The length of this preclusion period will vary depending on the amount of damages you recover. If your case settles, this period is calculated by deeming half of your claim as loss of income and applying a formula to assess the number of weeks applicable. The same formula is used to calculate how much you have to repay. The preclusion period is usually back dated to commence either from the date of your injury or that you first received Centrelink benefits, depending on the nature of your claim. 3

5 FAQ These are the questions that are most commonly asked by clients in personal injury cases. If you have any further questions then please contact your lawyer who will be happy to assist. 1. How long is the case likely to take? This depends on how long it takes for your injuries to stabilise and whether your case can be settled directly with the insurance company without having to go to Court. Most injuries take time to settle down and it is very important that sufficient time be allowed for this to occur. Your treating doctors can then give accurate medical reports on the state of your injuries and, most importantly, how these may affect you in the future. We rely on the medical reports to assess what your claim is worth and copies of the reports are sent to the insurance company to prove to them how much your claim is worth. Obviously we cannot begin negotiations to settle your claim until all medical reports have been obtained. It is no use getting medical reports until your injuries have stabilised. The amount of time that it takes you to recover from an injury will vary from case to case. People with relatively minor injuries can have their cases resolved within six months. People with more severe injuries could take years. The can take even longer if a matter has to go to Court. The current waiting times for Court cases also vary from Court to Court (see next question). 2. Which Court will my case be in? Unfortunately we cannot simply choose the Court that has the shortest delay. The choice of Court is dependant on the place where the injury occurred and the amount of damages likely to be recovered. For example, the Queensland and NSW lower Courts can award damages up to $75, but the Queensland and New South Wales District Courts can award up to $750, and $1000, respectively. The Supreme Courts have no upper limit on damages. An accident that occurs in one state must usually go to Court in that State, but if the Defendant lives in a state different to that where the accident occurred then the case can often be brought in either state. The lower Courts in both states have quite short waiting lists. Generally a hearing date can be obtained within 12 months of issuing proceedings. The District Court at Southport also has a relatively short waiting time of approximately 6-12 months. The Supreme Court Brisbane has about a 12 month waiting list. Unfortunately, the District and Supreme Courts of New South Wales can take 2-3 years, depending on the location. 3. How much will I get? This depends on how badly you are injured and the effect that those injuries will have on your future ability to work. Similar injuries may affect people differently. For example, the loss of a finger might not affect a lawyer much, but it might put a concert pianist out of business! Damages (money) are awarded for things such as pain and suffering, past loss of income (from the date of the accident to the date of settlement), medical expenses and interference with the ability to earn future income. But not all of these things are relevant to all claims. Sadly, Australian Courts do not award much for pain and suffering. In addition, some states (QLD & NSW among them) place limits on the amount of damages that can be awarded for pain and suffering. For example, people injured in NSW motor accidents will not recover anything for pain and suffering unless the injury is permanent and leaves them with a minimum 10% permanent impairment (and then you only get the damages that exceed this sum). It will not be possible to advise you about damages until all our enquiries are completed. 4

6 4. What percentage of the damages does the lawyer get and how much do they charge? Lawyers in Australia cannot presently charge contingency fees based on a percentage of damages recovered. The amount of legal costs that you incur with us and the method of calculating those charges is set out in our Costs Agreement and you should refer to that document for the specific details applying to your case. Generally speaking, we only charge you for the work that we actually do on the case and the amount of our fees depends upon the amount of work that it takes to get your case completed. If your case needs to go to Court, obviously your fees are going to be a lot higher than if your matter settles directly with the insurance company. Similarly, cases involving severe injuries often require a lot more work than relatively small claims and the charges will be higher. Our no win no fee costs agreement is usually based on a multiple of party-party costs recovered plus a percentage of the actual costs themselves or based on our usual hourly rates. It is almost impossible at this early stage to give you any estimates of what your costs would be but we can usually give you some indication after our initial investigations have been completed and we know what the insurance company s attitude towards your claim is going to be. Feel free to discuss costs with your lawyer at any time throughout the proceedings. 5. If I win or settle my case will the other party have to pay my legal costs? As a rough rule of thumb, you will only recover about 50% of your actual legal costs from the insurance company and sometimes less (eg in QLD Workcover matters you do not recover any costs up to a mediation or compulsory conference). This is because the Australian legal system has inherited an archaic English rule of law that states that you can only recover essential costs of the action from your opponent. These costs are known as party and party or standard costs. The costs that you incur with your own lawyer are called solicitor and own client costs. Basically, this rule of law states that not all of your costs incurred with your own lawyer should be recovered from the person who caused your injury (even though it s not your fault!). 5

7 Accordingly, there are many attendances, letters, phone calls, discussions and expenses paid to doctors, barristers and other experts which you do not recover from the insurance company. The shortfall in your legal costs must therefore be paid by you from your claim. Obviously the amount of the shortfall will depend on the amount of work that goes into getting your case finalised. This can cause difficulties in relation to smaller claims where sometimes the costs can actually exceed the amount of money being claimed. In these cases it is important that the matter be resolved as quickly as possible so that your costs do not take up too much of your claim. We always attempt to identify the cases falling into this category very early in the proceedings and attempt to ensure that you receive the maximum amount of your claim. 6. Are there any time limits? Yes! The first letter that we send to you will have a detailed advice as to the applicable time limits for your case. These time limits differ from state to state and from claim to claim. For example:- (i) a motor vehicle accident case in Queensland after 1st September 1994 requires the injured person to report the matter to the police within 28 days; notify the compulsory third party insurer within a month of seeing a lawyer; lodge a claim form within 9 months from the date of the accident and issue Court proceedings within 3 years; (ii) in New South Wales, car accident victims must lodge a claim form within 6 months of the date of the accident and report the matter to the police within 28 days. There is a 3 year time limit for issuing Court proceedings. (iii) a person injured at work must in Queensland and New South Wales must lodge a claim for compensation within 6 months of the date of the injury in order to collect Workers Compensation benefits. There is a 3 year limitation for common law claims; (iv) Most other personal injuries claims have a general 3 year limitation. There are also further time limits once you have lodged a claim, all of which must be adhered to or you could lose your right to claim totally. It is therefore important that after you have first seen us you keep us notified of any change of address and phone number promptly. We may need to contact you urgently to comply with a deadline. There are exceptions to the time limits listed above but you should always speak to your lawyer as soon as possible to avoid your claim being statute barred. 7. Will the case settle out of Court? In our experience over 90% of cases settle out of Court. This is particularly so in relation to relatively smaller claims where it is not in the interests of either party to incur significant legal costs in proceeding with a Court action. In addition to this, changes to legislation for certain claims in both Queensland and New South Wales has made it compulsory for insurance companies to actively attempt to settle cases without the need for Court proceedings. In larger claims however, insurance companies are reluctant to part with large sums of money and they often force the injured person to take Court proceedings in the hope that this will improve their bargaining position. Generally these settlements do not occur until shortly prior to the hearing date and, in some cases, on the steps of Court. Insurance companies generally attempt to settle your claim for the least amount of money possible and quite often there is no alternative but to get the matter on for hearing and flush out their best offer. If a satisfactory result cannot be obtained then the matter must proceed to hearing. 6

8 Our Lawyers have been practising in NSW and QLD Compensation Law for decades and our team have handled a vast number of compensation cases following incidents resulting from workplace accidents! 8. Can I continue to claim my medical treatment on Medicare or Private Health Fund? Yes, you can, however, any expenses you claim will have to be refunded to Medicare or your Private Health Fund at the end of the case. Always keep a full record of your expenses (including photocopies of accounts, receipts etc) as we will require those documents for your case. You should also keep in mind that after a case has settled, you may not be able to claim future treatment costs through Medicare if part of your claim included a component for future medical expenses. 9. If I recover damages, do I have to refund any Centrelink or Workers Compensation I have received? Yes, but usually only if you make a claim for loss of income. Also, if you are permanently incapacitated and are on an Disability Pension or Sickness Benefits the recovery of damages may preclude you from getting future Centrelink for a period of time after your claim has been settled or finalised. The length of this preclusion period will vary, depending on the amount of damages you recover. If your case settles, this period is calculated by deeming half of your claim as loss of income and applying a formula to assess the number of weeks applicable. The same formula is used to calculate how much you have to repay. The preclusion period is usually backdated to commence either from the date of your injury or that you first received Centrelink benefits, depending on the nature of your claim. 10. Are damages taxable? Damages themselves are not taxable. But once you receive your damages you will have to pay tax on any interest you earn from investing the money. Please note if you are awarded interest as part of your claim then those amounts ARE taxable. You should check these issues with your accountant. 7

9 11. If I get damages can I reopen my case later if my injuries get worse than first thought? No. This is why it is important to thoroughly investigate your medical condition before finalising your claim. Unfortunately, injuries can sometimes get worse instead of getting better. Sometimes injuries will improve for a period before taking a turn for the worse. Nobody can predict the future, but proper medical opinions should give you a reasonable basis to work on. Whilst expert medical reports cost money, they are a vital part of any action for damages. Although some cases can be reopened in exceptional circumstances, you should proceed on the basis that you only get one bite of the cherry. 12. What can I do to ensure I get all the damages I am entitled to? Keep a diary about all things relevant to the case. When the action gets to Court you will need to be able to give clear and reliable evidence about things like: The degree of your pain and suffering from time to time; The ways in which your life has been affected by your injuries; The amount of medical and other expenses incurred as a result of the accident; Details of all time off work as a result of the injuries; Particulars of all loss of income attributable to the accident. 8

10 Important Things For You To Do Retain copies of accounts and receipts for all expenses incurred and write down what they are for. (These documents should then be delivered to us so we can include them in your damages claim). Forward us copies of your income tax returns, group certificates and income taxation assessments during the case. (These documents will help us calculate and recover your claim for loss of earnings). Advise us of any income protection or superannuation policies you hold (you could be entitled to income or lump sum payments). You are no longer allowed to claim for gratuitous care provided by family members or friends but it is possible to claim for paid care or assistance. For example, if you are unable to mow your lawns, clean the pool, carry out maintenance of the home etc due to your work injuries and you pay someone to do this on a commercial basis, you can recover these costs. Where serious injuries are involved, this paid care could be substantial, so it is advisable to set this up wherever possible and if finances permit. Please keep records of any paid services, including the tax invoice and the receipt for payment. Avoid paying tradesmen cash and always insist on a tax invoice/receipt. Keep a record of your travel to and from medical appointments and treatment (you should make a note of the kilometres travelled and the size of the car that you are travelling in). If you lose your job because of your injuries, make a note of any attempts to obtain other employment (e.g. cut out the positions vacant in the paper and make notes of any telephone calls. Keep any letters refusing employment applications). Report any significant problems with your injuries to your doctor. Try and get your treatment finalised as quickly as possible with your medical advisers and follow up any treatment advice or referrals to specialists. We have a panel of medical practitioners, physiotherapists and other health professionals who we can refer you to for treatment if necessary. Contact your lawyer for details. Keep us informed of any developments in your ongoing treatment and progress; Notify us if you change address and or phone numbers (you should also notify Medicare of any change of address promptly). 9

11 13. Will private investigators be following me? It is possible that the insurance company will send investigators who will attempt to obtain video tape footage and/or photographs of you to see whether your claim is genuine. Sometimes they will go as far as tricking you to do certain things so that they can try and make out that your putting it on. Be careful of any strangers approaching you to assist them in changing flat tyres or lifting heavy objects. Another common trick is to follow you to a supermarket and let down your tyre when you go in to do your shopping. They will then video you changing the tyre in an attempt to establish that your injury is not as bad as it seems. If you are approached by any insurance investigators or strangers asking questions in relation to your case, don t tell them anything without first advising us. In fact, you should be very careful about who you speak to regarding your case as it is not unusual for investigators to speak to neighbours, workmates, local business and family members in an attempt to discredit you. Do not exaggerate or downplay your injuries and be honest with us about all aspects of your claim. Everything you tell us is highly confidential and we need to know everything about your case so that we can get you the best result. 16. Social Networks - Facebook, Twitter, MySpace, LinkedIn We strongly encourage you to deactivate your Facebook, Twitter, MySpace and LinkedIn accounts whilst your claim is running. Insurers will use private investigators to access all social media accounts to obtain information against you in the defence of your claim. Commonly, the investigators will look for pictures of you performing heavy exercise, engaging in sports, engaging in recreational activities, or engaging in heavy work in an attempt to obtain photographic and other evidence which can be used against you in the claim and tendered in subsequent proceedings. Private investigators have the ability to access social media accounts which are marked private through means of certain access codes. We therefore strongly encourage you to deactivate all of your social media accounts whilst the claim is being prosecuted. You should remember that anything you put on Facebook, Twitter, MySpace and LinkedIn including photos and comments, can and will be used against you in proceedings at a later stage. Alternatively, and at the minimum, please review your social media settings and ensure that all Facebook settings are set to strictly private. Occasionally investigators will use access via your friends social media pages to obtain access to your account. You should also make sure that your family and friends do not put any photos of you on their web pages or social media pages. Those photos can also be accessed by the insurer and used against you whilst your personal injury claim is being prosecuted. This is a general guide to help you with your case. Please speak to us if you have any specific questions. 10

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