If you have been injured at work or in a motor accident you may have a legal right to compensation. At McNamara & Associates we specialise in injury compensation claims on a “NO WIN NO FEE” basis. We have offices in Brisbane, Ipswich, Springfield & Gatton. We can help you now in the following areas:
Our lawyers will come to your home, or visit you in hospital for a free no-obligation initial consultation.
Workers’ Compensation Review
Recently, the Queensland Attorney-General announced a review of the Workers’ Compensation & Rehabilitation Act 2003 (QLD) will be undertaken by the Finance and Administration Committee (“the Committee”) of the Queensland Parliament ahead of the normal five year scheduled review deadline of 30 June 2013.
The Committee will consider the effectiveness of the current compensation regime in Queensland, the principles applied, and the aims to be achieved by the system. It would seem therefore that the Committee will examine whether employers in Queensland are unfairly and excessively exposed to a greater number of claims than those nationally. Although this examination is fundamental to a determination of whether a scheme is effective, the ‘other side of the coin’ should similarly be examined – being, the means of workers to make common law damages claims against negligent employers.
As a comparison, the threshold applied to the capacity of employees to make a common law claim in damages against negligent employers in New South Wales is a minimum 10% Whole Person Impairment (“WPI”), and is calculated in accordance with a scale formula outlined by Section 66 of the Workers Compensation Act 1987 (NSW).
It might be pragmatic to look at an example scenario: An employee sustains an injury in the workplace as a result of the employer failing to place effective safeguards for the operational use of the employer’s equipment, and the employee subsequently falls from the equipment. As a result, the employee suffers a back injury and must take significant time off work due to initial treatment time, follow-up medical appointments with a General Practitioner and Specialists, recommended rehabilitation, and then placement on a return-to-work program. After a few weeks being off the program and while on light duties, the employee is made redundant on account of an inability to perform the tasks of employment arising from the injuries. A Notice of Assessment is issue after a medical assessment, and provides a 9% WPI for a lumbar spine injury. On top of the issues arising from the negligence of the employer, the employee is now disadvantaged on the open labour market.
If the workers’ compensation scheme in Queensland is revised to implement a minimum threshold of say 10% as it is in New South Wales, then unfortunately the above employee in our example would not be entitled to claim common law damages against the employer.
This threshold, if applied in Queensland, would see a grossly significant reduction in the number of claims made against employers. Although this would certainly reduce the strain placed on the compensation scheme, it would mean ‘cutting out’ the effective means of injured workers to be adequately compensated for negligent acts of employers unless the injuries are severe enough to warrant a WPI of equal to or greater than 10%.
The Committee is scheduled to deliver a report on 28 February 2013.
Worker’s compensation, or more commonly known as “workers’ comp” is a type of insurance which replaces salary and medical benefits for wage-earners in the event of an accident which happened within the duration of employment. This is in exchange for the employee’s forfeiture of his right to initiate or file legal action against his or her employer.
Who is entitled to Worker’s Compensation?
- a person who sustains injury during the course of work
- if the injury occurred in Queensland or if the location of employment is within Queensland
- subcontractors who are owners of insurance policies
- for non-workers, entitlement will be determined under public liability law
WorkersCompensations coverage of injuries:
- accidents which happen while the worker travels to and from workplace, regardless of whose fault
- diseases, physical and psychological trauma, and aggravation of health status which are due to the accident
When to file for a claim?
It is necessary to report the incident to your employer immediately. If it’s not possible because of the injury you have sustained, ask a co-worker or someone else to do it for you. A weekly salary compensation plus medical expenses claim may be requested from an employer, if the claim was filed within six months of occurence of the accident. However, in dealing with WorkCover ensure that 28 days do not lapse between the time of the occurrence of the injury and filing the claim. Otherwise, it may not be granted.
Upon examination of the injury, the physician’s findings will determine a worker’s entitlement for compensation. Finding a competent and qualified medical practitioner is very important.
With a “Common Law Damages” claim, legal action must be instigated within three years of the incident. There are instances where extensions are granted, however, in this case, you need to urgently contact McNamara & Associates.
Filing a Worker’s Compensation claim:
A Worker’s Compensation claim form is available for download here You may ask your General Practitioner to file a claim form for you or call WorkCover on 1300 362 128. A medical certificate must be attached to an application for WorkCover.
The employer must be informed of the course of action of the employee. Copies of all documents submitted for filing must be kept by the worker. The date when the application is lodged with WorkCover must also be noted. McNamara & Associates can help you with this process and also ensure that you have all the necessary information and documents for filing a Worker’s Compensation claim.
Duration of the process:
WorkCover is expected to respond to your application within 20 business days to accept or reject your claim for any injuries. There are instances where you may be requested to set up an appointment with an accredited WorkCover physician for further medical investigation.
If your employer offers an amount of money so you won’t file a Worker’s Compensation claim:
Don’t accept this payment as it is illegal. In these circumstances, contact McNamara & Associates promptly
How much will you be paid if the claim is approved?
You are entitled to “Weekly Payments”. An initial payment of $500 for lost wages will be paid by your employer. The table below will give you an indication of what WorkCover may pay you following the initial payment:
|‘Industrial Instrument”||0 – 26 weeks||26 weeks – 5 years|
|Total incapacity||Usually 85% of the worker’s normal earnings||Usually 75% of the worker’s normal earnings|
For those who have sustained partial incapacity from the incident, a more complex formula is applied. McNamara & Associates can help you understand this.
Covered medical expenses:
Only the expenses relevant to medical treatment that adresses the injury sustained will be covered by WorkCover. For other treatment such as surgery, physiotherapy, psychological counselling or chiropractic treatments, further approval must be sought. McNamara & Associates will be able to work with you regarding the treatment which may or may not be covered by WorkCover.
Rejected Claims and discontinuanace of payments:
A government body known as Q-Comp is in charge of these matters. A request for review of the decision may be submitted to them, which must be done within three months following the notification of the decision being received.
A dispute may be filed for other decisions made by WorkCover. For these issues, consult McNamara & Associates.
Returning to work after receipt of compensation claim:
It is a legal obligation of workers to let their employer and WorkCover know of their return to work within 10 business days.
Lump sum claims:
An assessment for permanent impairment must be conducted by an accredited WorkCover physician before a claim for lump sum compensation can be filed. This will only be determined after the worker’s health status is deemed as stable is highly unlikely to improve despite further treatment.
For work-related impairments (WRI), an offer for lump sum compensation may be made by WorkCover. You may receive a document which is called a “Notice of Assessment”, which the worker must respond to within 28 days, otherwise, it will be deferred.
With a WRI of less than 20%, the worker will have to choose between the lump sum or common law damages because you cannot have both. It is imperative that you seek advice from McNamara & Associates to ensure that you make the best decision.
Common law damages:
A claim for common law damages may be filed if the accident was due to someone else’s fault. However, you may also file a claim even if you are “partly” to blame for the injury. Compensation may include:
- past and future medical expenses which includes rehabilitation, travelling for medical treatment
- degradation of quality of life which lead to inability to do recreational and leisurely activities
- psychological trauma
- wages lost (past and future)
Even at 0% impairment, a claim for common law damages may still be filed. This must be done as soon as possible since the claim for damages must not lapse three years from the date of awareness of the injury.
Sustained an injury due to a motor vehicle accident?
Dealing with injuries sustained from a motor vehicle accident can be difficult enough, let alone dealing with insurance companies. Depending upon the circumstances of your accident, you may be entitled to compensation
Are you qualified to pursue a CTP claim?
A Compulsory Third Party Insurance (CTP) is a mandatory regulation that requires all cars be insured upon registration, otherwise, the vehicle is deemed illegal. In situations where the driver of the vehicle who caused the accident injures or kills another person, CTP insurance is applicable
So, what are the things that make you eligible to file for a CTP claim?
You need to consider the following things. First, did you sustain an injury that resulted from the accident? Secondly, are you the driver of the vehicle who is not at fault? Answering “yes” to both these questions means you may pursue a CTP insurance claim.
Filing for a CTP claim:
- document as much information about the accident that happened such as vehicle plate numbers, location of the accident, any witnesses, and other details
- immediately go to the nearest police station and report the accident and provide all the relevant information.
- alongside your claim, attach a copy of a medical certificate stating the details of the injuries you have sustained from the accident
Duration of the process:
Once the CTP insurance claim is lodged, a decision must be made by the insurer within 14 days or alternatively, a request for further information. Within that period, the CTP insurer is required to either accept or reject the claim.
Do I need to go to court? A majority of the cases settle without requiring you to go to court.
A claim for damages may include the following:
- medical, rehabilitation, consultation, and medication costs- pain and suffering from the decrease of health status and quality of life, which affects your leisure activities
- lost wages or earnings that a person was and is entitled to receive as a wage-earner- home care services
If anyone dies in the event of an accident, is anyone eligible to make a claim on behalf of the deceased person?
Yes. In such cases, the dependants of the deceased person may pursue a claim for the loss of the deceased’s source of income. The deceased person’s estate can claim for funeral expenses if there are no dependents.
Who is obliged to pay for the claim?
Once a CTP claim is filed, it is not the driver of the motor vehicle being sued but rather, the insurer. All expenses brought about by the damages related to the accident are covered by the insurer under the outlined CTP, which includes the expenses for defending the case and the settlement amount which would eventually be agreed upon.
How about WorkCover?
For claims which may be linked with your work, a CTP and WorkCover claim can be pursued. WorkCover claims must also be filed immediately, like CTP claims. Timing is of the essence in both cases.
Not sure who is at fault?
Investigations can be conducted by McNamara & Associates
What if the insurer rejects the CTP claim?
In the event that the insurer is unwilling to pay for the damages, an appeal can be filed.
If you have sustained an injury not in the workplace or in a motor vehicle, you may be entitled to a Public Liability claim.
There is a wide variety of accidents that Occupiers and Public Liability Law covers and they include the following:
- injuries sustained during participation in a sport at a venue which is of poor maintenance
- slips, trips, and falls which may be caused by fluid substance, for example, occuring at a public place such as supermarkets, department stores, or malls
- labour-hire trauma occuring within the host employer’s private property
- trauma sustained from dog bites and attacks
- injuries cause by defective products such as hazardous toys for children, faulty electrical items, and other equipments with manufacturing and design defects
- accidents from recreational areas such as parks, community playgrounds, school play areas
Your Injury Compensation Claims may include:
- hospitalisation and medical expenses
- lost compensation or earnings that a person was entitled to receive as a wage-earner
- compensation for pain, suffering, and decrease in health status and quality of life
- home care services
Who can you file a claim against?
A person deemed responsible for the occurrence of an injury may be obliged to pay a compensation for the resulting damages. There are instances where a person may be held responsible even if he/she is not directly the cause of an injury. Such cases may be when an accident happens on the premises or under the management of the occupier.
A property owner or the occupier of such property is under a duty of care to ensure that the premises are hazard free and in circumstances where a hazard is evident, adequate safety precautions are applied.
Examples may be sporting fields or facilities, recreational areas, patios, pergolas, etc.
What you need to do if want to pursue a public liability claim:
- preserve evidences by photographing any injured part, the cause of the injury, or the place where it occurred
- immediately have yourself checked by your General Practitioner and inform him or her of the cause of your injury
- ensure that everything is well-documented and accounted for by holding on to all medical records and bills for all consultations
- in circumstances where you have received an injury from an object, the object itself if you still have in your possession may serve as a strong evidence