Adam Tayler explains the different elements of the WorkCover schemes – presented at the Queensland Law Society
There are two types of workplace injury lawyers, those who specialise in it and those who don’t. The distinction is significant.
The area of workplace injury law is one which is ever evolving and challenging. To be a good workplace injury lawyer you need to have a good background in all work related laws, not just those that govern injury claims. An understanding of industrial laws, discrimination laws and workplace health and safety obligations is essential to fully understand whether your client may have a viable work related injury claim.
If your boss tells you to go and interview a new client with a work related injury, there are some particular issues you need to know about which may make a difference as to whether a viable claim can be pursued or not. Given the more and more flexible nature of employment these days there is also a significant chance that in the majority of cases the client will have a cause of action against more than one entity which may engage other injury claim schemes.
The Workers Compensation Scheme
In Queensland all claims for work related injuries are regulated by the Workers Compensation and Rehabilitation Act 2003. The scheme allows for self insurers and there are 32 self insurers in Queensland being mostly large employers. Workcover Queensland, a Government Owned Corporation, is the default insurer for all other employers. Insurance is compulsory. Where an employer has not taken out insurance their workers will still be entitled to compensation under the Act.
Two parts to the WorkCover scheme
Broadly speaking there are two aspects to the scheme.
- Firstly there is a no fault entitlement to weekly benefits in lieu of wages, medical treatment, rehabilitation, other injury related expenses, lump sum compensation for permanent impairment and additional lump sum compensation for serious injuries. For fatal claims there is an entitlement to lump sum compensation for dependants, funeral costs and other related expenses.
- Secondly the Act regulates common law claims for damages where an employer is at fault for causing the injury and can be shown to have either breached the contract of employment causing damage or been negligent.
There is no longer any right to a statutory cause of action formerly available under the Workplace Health and Safety Act 1995. Note however, other potential statutory causes of action pursuant to for example the Coal Mining Safety and Health Act 1999. Some specific workplaces are also governed by their own legislation, for example other mining operations like coal seam gas, police, corrective services, emergency services, etc.
Information about Statutory Claims
Statutory claims must be initiated within 6 months of consulting a doctor about the injury. Extensions of time to lodge claims are available in special circumstances. A claim can be lodged by phone, online, through the doctor or by completion and submission of an application form. There are exclusions for self inflicted injuries or injuries caused by misconduct. Purely psychological injuries must not be caused by reasonable management action taken in a reasonable way in order to remain compensable under the Act.
Claims must be assessed and decided within 20 business days. The insurer can request more time, but must seek the worker’s consent first and advise the reasons why.
Identifying which Scheme applies
In some cases it will be obvious that there is a second potential tortfeasor and possibly another type of claim that can be pursued. The obvious example in the workplace context is where a worker is working under a labour hire arrangement.
As I mentioned before workplaces in the modern era are increasingly flexible. Casualisation of the workforce has led to an explosion of labour hire and temporary employment agencies. Labour hire arrangements are where a worker is engaged by an employment agency to work in another workplace. For example, Drake Industrial is a labour hire agency who have a book full of skilled employees who they loan out to other companies for their use.
In this scenario Drake Industrial is the true employer and the other company is a host employer. Essentially both of these entities have the obligations of an employer but only the true employer is covered by the workers compensation scheme. Claims against the host employer are essentially public liability claims and are governed by the Personal Injuries Proceedings Act 2002. Both of the pre proceedings processes of these Acts will need to be complied with in relation to the respective respondents. Note that pursuant to s5 of the Civil Liability Act 2003, work related injuries are excluded from the operation of the provisions of that Act.
Identifying the employment situation is therefore crucial. You must ask for and analyse payslips, contracts of employment, PAYG Summaries, tax returns, training documents, etc. to work out exactly what the true situation is.
Whether someone is an employee or an independent contractor can also determine which scheme applies. What may look on its face to be a workers’ compensation matter may turn out not to be if the person is in fact engaged as a contractor. In those circumstances the claim will be governed by PIPA.
A further example where a third party might be involved is where the injuries may have been caused by another worker who is not an employee of the same entity or is themselves and independent contractor.
Who is responsible?
Another example where a third party other than the true employer might be involved is where there has been a failure of some plant or equipment which is the responsibility of some other entity. There is significant debate about the pros and cons of joining other entities to a claim and the complications that compliance with two regimes can bring. The important point though is that these entities need to be identified and considered when advising the client on the best course of action. If you can identify accurately all the relevant entities involved then your supervising partner can more easily make the call as to which entity or entities to sue and which scheme applies.
There are of course other considerations such as restrictions on damages that differ scheme to scheme. With the recent amendments to the workers compensation scheme those with a 5% impairment may find they are excluded from a damages claim against the true employer but able to proceed against the host employer.
Preparation for a Common Law claim (legal perspective)
Preparation commences from the first interview with the client. A claim needs to be prepared from the beginning as if it is going to trial. Doing this doesn’t mean you are going to run more trials. To the contrary if you prepare a claim for trial it is more likely to settle because the evidence will be there to convince an insurer to resolve the matter.
The client’s statement is the most important document you will have on file and needs to be comprehensive and accurate. To achieve this you need time. The first interview may not be enough to finalise a proper statement depending on the complexity of the matter.
Mechanism of injury
Systems of work and the mechanism of injury need to be accurately described blow by blow. What that statement should really be is after describing the system of work in detail something like:
I had my feet facing towards the box. The box was at floor level on a pallet. I had to lean in approximately 500mm to reach the box because of the positioning of the pallet. I bent at the waist and twisted to my left to avoid the pole in front of me and grasped the box with two hands on the left and right side of the box respectively. The box was 700mm2 in shape and was made of cardboard with no handles. As I lifted the box I felt a sudden sharp pain in my lower back.
Preparation of Notice of Claim
There are three crucial aspects to a notice of claim;
- the description of the event;
- the particulars of why the employer is liable; and
- the offer.
The description of the event causing an injury in your notice of claim for damages needs to be comprehensive. The more detail you can provide the easier it will be to convince an insurer of the merits of the claim.
If some context is required to understand why a particular event was caused by the employer’s negligence then that context should be provided. For example if there were complaints prior about a particular system of work then those complaints should be detailed with dates, names, to who they were made, etc.
Duty of care
Particulars of the scope of the duty and standard of care required and the nature of the breach are also required. Treat the answer to how the employer is liable as you would a pleading but perhaps in a less wordy way. The same concepts apply though. Why is a duty of care owed in these circumstances? What is the extent of the duty of care? How has the duty been breached. Has that breach caused the injury?