Workcover Claims Cairns

What is Workers Compensation?

Workers compensation is payment that a worker receives from WorkCover Queensland (the state government-owned insurance agency) as compensation for an injury or illness which is a result of their work.  The Workers Compensation and Rehabilitation Act 2003 sets out the rules and regulations which govern compensation claims.

Workers compensation falls into two distinct categories:

1. Statutory compensation (often called workers comp): WorkCover pays for your medical expenses and helps cover wages for a limited period while you cannot work. Every worker who has been injured at work is entitled to this compensation, even if they were to blame for the incident which caused their injury– it is a “no fault” scheme.
2. Common law compensation (claim for damages): if your employer (or another worker) in some way contributed to the incident that injured you at work, you can sue for damages to cover all losses sustained as a result of the work injury. This can include thing like loss of past and future earnings and superannuation, past and future medical expenses, medical aids, and care and assistance costs. 

It is important to understand the difference between making a claim to WorkCover for statutory benefits, and making a common law claim. The statutory benefits claim is accepted by WorkCover as a matter of course, except in very exceptional circumstances, whereas a claim for damages is usually disputed by the employer and/or WorkCover.

I was injured at work, travelling to or from work, or in connection with my work – Do I have a Claim?

Even if you are at fault, if you have been injured at work, travelling to or from work, or in any way connected with your work – you have the right to claim statutory compensation through WorkCover’s no-fault scheme.  This will cover your medical expenses and help cover lost wages for a limited period while you cannot work because of your injuries.

In many cases, if you can show that your employer (or another employee) was responsible for the incident that caused your work injury, you may also be able to make a common law claim for damages.

Have you been offered a settlement? Get advice immediately

If you were injured in a work incident and you have been offered compensation or a settlement by your employer, it’s probably because they accept responsibility for the incident.

It can be tempting to accept such offers and avoid the stress and complication of lawyers and drawn-out processes to get other compensation.

There are a few things to be aware of:

• An offer of compensation will almost always carry with it a requirement to release or discharge the party who is paying the compensation. That is, you waive your rights to seek any other compensation against that party relating to that incident; and
• The compensation you’re offered may be considerably less than you are entitled to receive through other compensation claims processes.

We strongly encourage all clients to seek urgent legal advice prior to accepting any offer.

What does workers compensation cover and how much can I claim?

Statutory Compensation

If you are injured at work, you will most likely be placed on statutory compensation benefits for the time you are injured until you return to work or make a common law claim. Statutory compensation will ordinarily cover your medical and rehabilitation costs associated with the injury. Statutory compensation will usually pay you between 75% and 85% of your salary (depending on the amount of time you are off work).

Statutory compensation benefits are paid only for a limited period. At the end that time, you’re given a “whole person impairment assessment”. In the assessment, WorkCover doctors will review the nature and extent of your injuries, and the impact they have had on you, to determine a percentage rating.

Following the assessment, you will be issued with a Notice of Assessment, which generally includes WorkCover’s statutory lump sum compensation offer.  Once WorkCover issues this offer, you have 20 business days to choose whether to accept the offer or pursue a common law claim for compensation.

If you accept the offer attached to the Notice of Assessment, you will be barred from proceeding with common law compensation.  

Common Law Compensation

In most cases where you can show your employer was at fault, the lump sum offered by WorkCover in their Notice of Assessment is significantly less than you would receive through a common law claim.

When proceeding with a Common Law Compensation claim, you claim compensation that relates to the injury you suffered and is based on the nature and extent of the injury as well as how that injury has impacted upon you and your financial circumstances.

In undertaking the compensation assessment (known as a damages assessment) a worker’s lawyers and Workcover (or ultimately the Court if no agreement can be reached with Workcover) consider various categories of compensation known as heads of damage.  In assessing compensation, an allowance is made for each of the heads of damage and then the total of all of the allowance is added together.

What will I be compensated for?

The various categories for which an injured worker is entitled to compensation include

Compensation for Pain and Suffering / General Damages

Whilst it is impossible to ever properly compensate someone for pain with money, under this category an injured worker receives compensation for the pain and suffering that they have suffered as a consequence of their injury. The exact amount of compensation that is awarded under this category is arrived at having regard to the medical evidence that is obtained during the claims process (which outlines the nature and extent of the injured worker injury and how this has impacted upon their lives) and the general damages scale included in the Civil Liability Act 2003.

Compensation for past loss of wages

Under this category an injured worker is entitled to recover:

1. The difference or “gap” between their usual wage and the statutory compensation they have received;
2. Any losses of wages arising from periods during which they have not been able to work (or work their usual hours) as a result of their injuries;
3. Any holiday leave or leave without pay that has been taken as a consequence of the injury.

for any period from the date of their accident to the date the receive compensation.

Compensation for past medical treatment 

If an injured worker has incurred an expense for a medical or rehabilitation treatment which has not been covered by Workcover under the statutory compensation scheme, they are entitled to recover such costs under this category of compensation from the date they incurred the expense until the date they receive compensation.

Compensation for past care and assistance

Where an injured worker has required the care and assistance of a family member or friend to assist them in the day to day tasks that they would have undertaken themselves but for their injury (or to assist them with their recovery or treatment) for a minimum of 5 hours per week for a period of 6 months or more, they are entitled to receive compensation for such care at an adopted hourly rate under this category of compensation.

Compensation for future loss of wages

In almost every claim, this category comprises the largest portion of an injured persons overall entitlement to compensation. Future loss of wages (or future economic loss as it is often referred to) calls for a determination of the likelihood of the injured person losing wages into the future as a consequence of their injury.

In almost every case (even where an injured person has made a full recovery and has returned to their pre-injury role) an injured worker will be entitled to an award of compensation for future economic loss assess on a “global basis”. In cases where an injured worker has not been able to return to their pre-injury job (or has to reduce their hours) they will be entitled to be compensated for their weekly loss of wages from the date of compulsory conference or trial until their retirement.

Compensation for future medical treatment

Under this category of compensation an injured worker is entitled to be compensated for any future medical treatment or medication that the medical evidence suggest they will require from the date of the conference moving forward.

Compensation for future care and assistance

Under this final category of compensation, an injured worker in entitled to be compensated on an hourly rate basis for any care and assistance that the medical evidence suggest that they will require from a family member or friend to assist them with tasks that they can no longer perform for themselves either temporarily or permanently. The entitlement to this category of compensation is subject to the medical evidence supporting a finding that the care is required for at least certain statutory minimums.

How do I make a WorkCover compensation claim?

To lodge a claim for statutory compensation (workers compensation), you need to complete and lodge the statutory claim form (available through ). In most cases, your lawyer will be able to help you lodge a claim quickly and cost effectively.

It is important to understand that lodging a claim does not mean you are automatically eligible for lump-sum compensation, however when your claim is accepted WorkCover will pay for medical treatment (for up to 2 years), plus a portion (usually 75% to 85%) of your usual weekly wage.

In addition to statutory benefits, you may also be entitled to compensation through a common law claim. Note that this process is far more complicated than for WorkCover statutory benefits, because it almost always requires legal assistance.

To seek lump sum compensation, you must first receive your Notice of Assessment from WorkCover (issued once you have completed the “whole person impairment assessment”).

Note: The Notice of Assessment from WorkCover will often include an offer for lump sum compensation – it is critical that you do not accept this offer until you have had legal advice.

Note: In most cases where you can show your employer was at fault, this lump sum compensation is significantly less than you would receive through a common law claim.

To start the common law claim process, you then need to lodge a Notice of Claim form with WorkCover and follow the process detailed here.

How long does it take to make a compensation claim?

If you are making a statutory claim through WorkCover, you should receive a decision within 20 business days of lodging your completed paperwork. 

If you are making a common law claim for damages, things take a little longer.  If agreement can be reached out of Court, the process usually takes around 12 months, however if it is necessary to go to trial, this can be significantly longer. 

Our goal is to settle out of Court wherever possible as this is faster and less expensive for our clients. 

How much does it cost to make a compensation claim?

If you are comfortable with the process and paperwork involved, it is possible to make a statutory claim yourself, however you should keep in mind that any offer for lump sum compensation you receive with your Notice of Assessment from WorkCover is likely to be significantly less than you would receive if you were to make a common law claim.  For this reason, you should not accept any offer until you have spoken to your lawyer.

Due to the complexity of common law compensation claims we strongly recommend you engage a lawyer to act on your behalf. 

Like most lawyers who handle WorkCover claims, Preston Law act on a “no win no fee” basis which means that you won’t have to pay anything until you receive your compensation.  If you are unsuccessful in your claim, you won’t have to pay anything at all.