Last updated 7 December 2016 This chapter is currently under review.
WorkCover provides a ‘no fault’ scheme whereby an employee will be entitled to receive statutory compensation if the employee is considered a ‘worker’ and sustains an injury that arises out of, or in the course of, employment and:
- for a physical injury, the employment is a significant contributing factor to the injury or
- for a psychological condition, the employment is the major significant contributing factor to the condition.
Compensation will not, however, be paid if the injury is intentionally self-inflicted (s 129 Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act)) or, subject to some exceptions, was caused by the employee’s serious and wilful misconduct (s 130 WCR Act).
To be covered, the injury or disease must happen in Queensland, or if it happens elsewhere, the worker’s principal place of employment must be in Queensland (s 113 WCR Act).
Definition of a worker
A worker is an individual who works under a contract for service and is an employee for the purpose of assessment of pay-as-you-go tax (PAYG tax) withholding under the Taxation Administration Act 1953 (Cth) (s 11 WCR Act). This can include sub-contractors, but it is usually the standard employer/employee relationship where wages are paid in return for labour.
There are some groups of people who are specifically excluded by the WCR Act from receiving compensation (e.g. professional sportspeople or a member of a crew of a fishing ship in certain circumstances). The WCR Act does, however, allow for WorkCover to enter into contracts of insurance to cover some volunteers working in emergency services, local government, statutory bodies, unions and charitable or other non-profit organisations.
The law can be complex in this area and, if in doubt, obtaining advice from an accredited personal injuries specialist is recommended.
What injuries are covered?
All personal injuries are covered by the WCR Act including physical, psychiatric and psychological disorders or an aggravation of such conditions. Injury also includes diseases, aggravation of diseases and loss of hearing where employment is a significant contributing factor (s 32(1) WCR Act). Injury can also include death.
Psychiatric and psychological injuries
The WCR Act has specific exclusions for psychiatric or psychological injuries (s 32(5) WCR Act). It provides that an injury does not include a psychiatric or psychological disorder arising out of, or in the course of, the following:
- reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment
- the worker’s expectation or perception of reasonable management action being taken against the worker
- action by the Workers’ Compensation Regulator (regulator) or an insurer in connection with the worker’s application for compensation.
The WCR Act provides examples of actions that may be considered reasonable management action taken in a reasonable way, including:
- action taken to transfer, demote, discipline, redeploy, retrench or dismiss an employee
- a decision not to award or provide promotion, to reclassify or transfer a worker’s employment or to give leave of absence or other benefit.
These broad exceptions can impose significant hurdles, and it is wise to seek legal advice before lodging the application for compensation with WorkCover.
In order to claim compensation for loss of hearing, a worker must have been employed in an industry in Queensland for a period totalling at least five years and, again, employment must be a significant contributing factor causing the loss of hearing. Workers are not entitled to a lump sum compensation for the first 5% of hearing loss (s 125(4) WCR Act).
Injury during employment
Usually accidents occur in the workplace, but a number of other circumstances are covered. For example, while the worker is:
- away from the place of employment in the course of the worker’s employment
- temporarily absent from the place of employment during an ordinary recess
- attending a trade, technical or other training school that the worker is expected to attend
- on a journey between the worker’s home or place of employment and a place to obtain medical advice, treatment or rehabilitation for an existing injury (s 35 WCR Act).
Importantly, the WCR Act also provides compensation for an injury sustained by a worker on a journey between the worker’s home and place of employment (ss 34, 35 WCR Act). The journey to or from the worker’s home starts or ends at the boundary of the land on which the home is situated (i.e. the fence line) (s 35(3) WCR Act). As such, if a worker falls down the stairs of their home on their way out the door to work, they will not be covered. A worker’s home is defined as the worker’s usual place of residence and may include a temporary residence (s 35(4) WCR Act). Compensation may not be payable if there was a substantial delay, interruption or deviation in the journey (s 36 WCR Act).
Section 36 of the WCR Act deems injuries not to have arisen out of or in the course of employment if they occur during a journey when the worker drives:
- under the influence of alcohol while in control of a vehicle (in contravention of s 79 Transport Operations (Road Use Management) Act 1995 (Qld)), and this is the major significant factor causing the event
- dangerously (in contravention of s 328A Criminal Code Act 1899 (Qld)), and this is the major significant factor causing the event.
If a worker sustains a fatal injury during the course of their employment, then compensation may be payable to the dependant/s of the worker. The amount of compensation payable will depend on whether the dependent was totally or partially dependent on the worker.
The compensation may include:
- a lump sum of between $88 485 (s 201(3)(a) WCR Act) and $589 875 (s 200 WCR Act) depending on the level of dependency
- additional lump sum of $15 770 for a totally dependent spouse (s 200(2)(aa) WCR Act) or $31 250 for dependants who are under 16 or students (s 200(2)(b) WCR Act)
- a lump sum of $58 990 for non-dependent spouse, issue or next of kin (s 201A WCR Act)
- reasonable medical and funeral expenses for the deceased worker (s 199 WCR Act)
- weekly benefits for dependent children who are under 16 or a student (ss 200, 201 WCR Act).
A dependent spouse includes a de facto partner where there has been a continuous domestic relationship for at least two years or a shorter period where the circumstances evidenced a clear intention of a long-term and committed relationship (s 29 WCR Act).
Compensation is not payable if the injury is intentionally self-inflicted (s 129 WCR Act). However, a work-related suicide may still be covered if the psychiatric condition was so severe as to deprive the worker of the ability to form a deliberate intention to cause self-harm, or if the psychiatric injury is found to have arisen out of the course of employment in compensable circumstances (see Psychiatric and Psychological Injuries on this page).
Serious and wilful misconduct
If the injury is caused as a result of serious and wilful misconduct by the worker, compensation will only be payable if the injury results in death or a total bodily impairment of 50% or more (s 130 WCR Act). The WCR Act does not define serious and wilful misconduct.
Time limit on application
All injuries should be formally reported to the employer as soon as practicable. A claim for statutory compensation is generally only valid if lodged within six months after the entitlement to compensation arises (s 131 WCR Act). This is usually when the injury occurs, but is defined by the WCR Act as the day on which the worker is assessed by a:
- nurse practitioner for a minor injury
- dentist for an oral injury (s 141 WCR Act).
This time limit may be waived if WorkCover is satisfied that any delay in lodging the application is due to mistake, absence from Queensland or a reasonable cause (s 131(5) WCR Act).
WorkCover must waive the requirement if it is satisfied that special circumstances of a medical nature exist as determined by the Medical Assessment Tribunal (s 131(4) WCR Act).
If the application is lodged more than 20 business days after the injury occurs, WorkCover’s liability to pay compensation is limited to no more than 20 business days before the day on which the application was lodged (s 131(2) WCR Act).
Some employers are under a legal obligation to maintain proper records of injury and to report injuries to WorkCover within eight business days (s 133 WCR Act). Claims for compensation can be made even if the employer has left the address where the worker worked or the employer has gone into liquidation.
How to claim
The medical certificate must be obtained from a medical practitioner or, for a minor injury, a nurse practitioner (s 132 WCR Act). The certificate must be lodged with the claim form. The claim can be lodged in a variety of ways including by post, in person, by telephone, fax or over the internet. The claim form must be truthfully completed. Substantial penalties can apply for not truthfully completing the form.
A copy of the claim form should be served on the employer. The worker should also keep a copy of the documents and note the date the claim was lodged.
WorkCover has 20 business days after receipt of the claim form in which to decide whether to accept the application for compensation (s 134 WCR Act). WorkCover has the right to ask the worker to provide a statement and any other proof of the injury and its cause. The worker may also be asked to attend a medical appointment with a WorkCover doctor and must cooperate with such a request (s 135 WCR Act).
Once a worker’s application for compensation is accepted, and where an incapacity to work results from an injury, WorkCover is obliged to pay weekly compensation to the worker in lieu of the worker’s usual wage.
The provisions in respect of weekly payments are complex, and the WRC Act should be referred to for more specific information.
The weekly compensation payable for injuries sustained after 1 January 2008 is as follows:
- 85% of the worker’s normal weekly earnings for the first 26 weeks, and then
- 75% of the worker’s normal weekly earnings between 26 weeks and five years.
If the worker is unfit for work after two years, any ongoing weekly compensation will depend on the worker’s likely degree of impairment.
Workers receiving compensation have a legal obligation to notify the employer and WorkCover in writing of a return to work within ten business days even if the work is voluntary (s 136 WCR Act).
Medical, hospital and rehabilitation expenses
WorkCover must pay the cost of any reasonable medical, hospital and rehabilitation expenses that a worker will incur (ch 4, pt 2 WCR Act). To have WorkCover pay for any treatment, such as surgery, physiotherapy, psychological counselling and chiropractic treatment, prior approval should be obtained from it.
At the very least, a referral for the treatment should be obtained but it is often better for the worker’s treating doctor to make this request on the worker’s behalf.
WorkCover also imposes limits on the amount of treatment. However, WorkCover has an overriding responsibility to provide for the worker’s rehabilitation and return to work (s 220 WCR Act).
If the worker has to travel a distance of more than 20 kilometres one way for the purpose of medical treatment, they may be entitled to claim travelling expenses (s 219 WCR Act). In any case, it is wise to keep records of all travelling for medical treatment. The cost of taxi or ambulance travel is not claimable until a doctor certifies that it is necessary.
A worker receiving weekly compensation payments may be eligible to receive a caring allowance, if:
- the worker depends on day-to-day care for the fundamental activities of daily living
- the care is to be provided at the worker’s home on a voluntary basis.
Assessment of a worker’s care needs must be undertaken by an occupational therapist (s 224 WCR Act).
Cessation of payments
A worker’s entitlement to receive weekly compensation ceases when the first of the following happens:
- the incapacity because of the work-related injury stops
- the worker has received weekly payment for the incapacity for five years
- WorkCover has paid the maximum amount of compensation prescribed by the WCR Act (s 144A).
A worker’s entitlement to payment of medical treatment, hospitalisation and expenses ceases when:
- the entitlement to weekly compensation ceases
- medical treatment is no longer required because the work-related injury is unlikely to improve with such further treatment.
Lump sum compensation
A worker may be entitled to receive lump sum compensation from WorkCover if the worker has sustained a degree of permanent impairment as a result of the accepted injury.
There is no time limit on applying for lump sum compensation as long as WorkCover originally accepted liability for the claim for weekly payments and/or medical expenses.
WorkCover may automatically arrange, or a worker can request it arrange, for the worker to be assessed to determine whether the worker has sustained a permanent impairment (s 178 WCR Act). This assessment should not, however, occur until the worker’s injury has stabilised and is unlikely to improve with further medical or rehabilitative treatment.
Following the assessment of the injury, the worker will receive a document known as ‘Notice of Assessment’ detailing whether the worker has sustained a degree of permanent impairment.
Importantly, within 20 business days of receiving the Notice of Assessment, WorkCover will cease paying any weekly compensation and medical treatment. For this reason, it is usually better to wait until WorkCover decides to assess the impairment.
WorkCover must have the impairment assessed by:
- an audiologist if it is for industrial deafness
- a doctor for a physical injury
- the Medical Assessment Tribunal if it is a psychiatric or psychological injury (s 179 WCR Act).
For a physical injury, if the worker does not agree with the assessed degree of permanent impairment, the worker has 20 business days after the Notice of Assessment is given to request the impairment be assessed by another doctor or the Medical Assessment Tribunal. Save for an error of law, a worker cannot request a review of a decision of the tribunal.
If the degree of permanent impairment detailed in the Notice of Assessment is less than 20%, the worker must make an irrevocable choice between accepting the lump sum offer or claiming common law damages (s 189 WCR Act). The worker cannot do both. The worker’s choice is also final and, as such, it is essential that legal advice be sought at this stage.
If the degree of permanent impairment detailed in the Notice of Assessment is 20% or more, the worker can accept the lump sum offer and pursue a common law claim for damages.
A worker is not required to make a decision in respect to the offer of lump sum compensation within 20 business days of it being given. If the worker does not respond to the offer, the offer is taken to be automatically deferred and can be accepted at any time in the future provided, where the degree of permanent impairment is less than 20%, the worker has not commenced a common law claim.
Rejected claims or terminated benefits
If a worker is unhappy with a decision by WorkCover in respect to payment of weekly compensation, the funding of medical, rehabilitative or hospital treatment and/or paying a caring allowance, they may have review and/or appeal rights. In these circumstances, the worker should immediately seek legal advice as strict time limits apply within which to exercise such rights (ss 540, 548 WCR Act).
If the decision is in respect to the acceptance or rejection of an application for compensation, termination or suspension of the payment of compensation or a failure to make a decision in respect to an application for compensation, a worker has the right to ask for review of the decision or failure to make a decision.
A worker must lodge an Application for Review with the regulator, who is separate from WorkCover, within three months from the date of receipt of notice of the decision or from the date of lodgement of the application (s 542 WCR Act).
It is recommended that legal advice be sought to assist in lodging a review. A worker may be legally represented during the review process.
Sometimes WorkCover will refer the decision on a claim directly to the tribunal. The applicant is entitled to representation before the tribunal but, essentially, it is a medical review process, not a legal one.
The regulator must, within 25 business days after receiving the application for review, decide to:
- confirm the decision
- vary the decision
- set aside the decision and substitute another decision
- set aside the decision and return the matter to the decision maker with the directions the authority considers appropriate (s 545 WCR Act).
The regulator may, with the worker’s (applicant’s) consent, extend the time in which to make a decision. If the regulator fails to make a decision within the 25 business-day time period, the worker (applicant) can appeal directly to the Queensland Industrial Relations Commission against the regulator’s failure to make a decision (s 546(4) WCR Act).
The worker may request to meet with a representative of the regulator to make oral submissions.
It is preferable to try to avoid reference to the tribunal, as the tribunal’s decision is final and cannot be reviewed or appealed in ordinary circumstances (s 515 WCR Act). The tribunal can re-open a matter if fresh medical evidence is provided within 12 months from the date of the original tribunal decision (s 512 WCR Act).
If the regulator affirms the original decision, the worker has 20 business days from receiving the decision to lodge an appeal with the Industrial Relations Commission (s 550 WCR Act). It is advisable to seek legal advice before deciding whether to appeal to the commission.
Some decisions cannot be reviewed by the regulator and must be appealed directly to the commission or an Industrial Magistrate (s 548 WCR Act). As these decisions must be appealed within 20 business days of receiving the decision, it is important that legal advice is immediately sought (s 550 WCR Act).
A party who is aggrieved by a decision of the commission may appeal to the Industrial Court, and the decision of the Industrial Court is final (s 561 WCR Act).