Workers’ compensation
in Queensland.

It depends. In addressing this question, we often use the ATO’s six key factors to determine whether someone is an employee or a contractor:

• Ability to subcontract/delegate: are you free to delegate the work to other workers to complete the work for you?
• Basis of payment: do you get paid when you complete the work?
• Equipment, tools and other assets: do you use your own tools and equipment to complete the work and does not receive any allowance or reimbursement?
• Commercial risks: do you bear the risk yourself?
• Control over the work: do you get to choose how, where and when the work is done?
• Integration: do you provide services or perform work to further your own business?

If you are answering yes to the above, you are likely to be a contractor and you may not be entitled for workers’ compensation.

To make a WorkCover claim in Queensland, you should report the injury to your employer, see a doctor and lodge an application for workers’ compensation as soon as possible.

Your doctor will usually need to issue a Work Capacity Certificate describing your injury, treatment needs and capacity for work. You can then lodge your claim online or by telephone with WorkCover Queensland. If your employer is self-insured, the claim must be lodged with that insurer instead.

You should keep copies of relevant medical certificates, reports, receipts, payslips and communications with your employer. WorkCover may contact you, your employer, treating practitioners and witnesses when investigating the claim.

Reporting the injury to your employer does not, by itself, lodge a WorkCover claim. The worker must still submit an application to the appropriate insurer.

A Queensland workers’ compensation claim generally must be lodged within six months after the entitlement to compensation arises. In many cases, this is calculated from the date on which a doctor first assesses the worker for the injury.

Different rules may apply to certain illnesses, psychiatric injuries, latent-onset conditions or injuries that develop over time. A late application may sometimes be accepted where the delay resulted from a mistake, absence from Queensland or another reasonable cause. However, an extension is not automatic.

The statutory WorkCover deadline is also different from the limitation period applying to a common law damages claim, which is generally three years from the date of injury.

Because missing a deadline can affect your rights, you should lodge your claim promptly and obtain legal advice if more than six months has passed.

WorkCover generally aims to accept or reject a workers’ compensation claim within 20 business days.

The insurer may investigate whether:

• You are a “worker” under Queensland law;
• Your injury arose out of, or in the course of, your employment;
• Your employment was a significant contributing factor to the injury;
• The application was lodged within time; and
• The medical and employment evidence supports the claim.

A decision may take longer if WorkCover is waiting for medical records, wage information, statements or information from your employer. Complex physical or psychological injury claims may also require further investigation.

If WorkCover cannot decide the claim within 20 business days, it should contact you and explain the delay. You may have review rights if you disagree with the reason given for the delay.

If your WorkCover claim is accepted, you may receive compensation and support relating to your workplace injury. Your precise entitlements will depend on your injury, capacity for work and individual circumstances.

Available benefits may include:

• Weekly compensation for lost earnings;
• Medical, hospital and pharmaceutical expenses;
• Physiotherapy, psychology and other rehabilitation treatment;
• Rehabilitation and return-to-work assistance;
• Necessary and reasonable travel expenses associated with approved treatment;
• A lump-sum payment for permanent impairment; and
• Death and funeral benefits in fatal injury claims.

Treatment and expenses generally must be reasonable, medically necessary and related to the accepted workplace injury. Some expenses should be approved by WorkCover before they are incurred.

Statutory benefits do not usually compensate a worker for every type of loss. Additional damages may be available through a common law claim if employer negligence can be established.

Weekly compensation is usually calculated by reference to your Normal Weekly Earnings and any applicable award, enterprise agreement or other industrial instrument.

Normal Weekly Earnings are generally based on what you earned from your employer during the 12 months before the injury. If you worked for the employer for less than 12 months, WorkCover may use your earnings during the shorter period.

The calculation may take account of regular wages, overtime, penalty rates, higher duties and certain allowances. Some payments, including superannuation and expense-related allowances, are generally excluded.

For total incapacity during the first 26 weeks, the applicable rate is commonly the greater of 85% of Normal Weekly Earnings or the amount payable under the relevant industrial instrument, subject to statutory limits. Different calculations apply after 26 weeks, for partial incapacity and where a worker has more than one employer.

You may be able to bring a common law damages claim if your workplace injury was caused by your employer’s negligence.

Unlike a statutory WorkCover claim, which operates on a no-fault basis, a common law claim generally requires the worker to prove that:

• The employer owed the worker a duty of care;
• The employer breached that duty;
• The breach caused or materially contributed to the injury; and
• The worker suffered compensable loss as a result.

Examples may include failing to provide a safe system of work, proper training, suitable equipment, adequate supervision or an appropriate response to a known workplace risk.

Common law damages can include compensation for pain and suffering, past and future economic loss, treatment expenses and care. Strict procedural requirements and limitation periods apply. A claim generally must be commenced within three years of the injury, subject to limited exceptions.

If WorkCover or a self-insurer rejects your claim, you can request written reasons and may apply for an independent review through the Workers’ Compensation Regulator.

A claim may be rejected because the insurer believes that:

• The injury was not sufficiently connected with employment;
• The legal definition of an “injury” or “worker” was not satisfied;
• The application was lodged outside the applicable time limit;
• The medical evidence did not support the claim; or
• A statutory exclusion applies.

An application for review generally must be lodged within three months after receiving the insurer’s written decision. The review should identify why the decision is incorrect and include relevant supporting evidence, such as medical reports, employment records or witness statements.

If you disagree with the Regulator’s review decision, you may have a further right of appeal to the Queensland Industrial Relations Commission. Short time limits apply, so legal advice should be obtained promptly.

An employer must not dismiss a Queensland worker simply because the worker made a legitimate workers’ compensation claim.

Queensland law also provides specific protection where a worker is temporarily unfit because of a workplace injury. During the 12 months following the injury, an employer must not dismiss the worker solely or mainly because the worker is not fit for employment in a position because of that injury.

This does not guarantee employment in every situation. An employer may still be able to end employment for a lawful reason unrelated to the injury or WorkCover claim, such as genuine redundancy, serious misconduct or another valid reason.

Other protections may also arise under the Fair Work Act, an award, enterprise agreement or employment contract. Some employment claims must be commenced within 21 days after dismissal. You should obtain advice immediately if your employment has been terminated or threatened.

Some contractors and subcontractors may be covered by workers’ compensation in Queensland, even if their written agreement describes them as independent contractors.

Eligibility depends on the true nature of the working arrangement and whether the person falls within the statutory definition of a “worker”. Relevant considerations can include:

• Whether the person is engaged mainly to provide their own labour;
• How the person is paid;
• Whether the person can delegate or subcontract the work;
• Who controls how the work is performed;
• Whether the person operates an independent business; and
• The particular contractual and business structure involved.

Having an ABN, submitting invoices or being described as a contractor is not necessarily decisive. Conversely, genuine sole traders and some contractors may not be covered and may need their own accident, disability or income-protection insurance.

Contractor cases can be legally complex and should be assessed individually.

A Notice of Assessment records WorkCover’s assessment of your Degree of Permanent Impairment, or DPI, after your injury has become stable and stationary. It may also contain an offer of lump-sum compensation.

The decision to accept the lump sum can have significant consequences:

• If your DPI is less than 20%, accepting the lump-sum offer will generally prevent you from later pursuing a common law damages claim for that injury.
• If your DPI is 20% or more, you may generally accept the lump sum and still pursue a common law claim.
• If you disagree with the DPI assessment, you generally have 20 business days to request a fresh assessment, provided the original assessment was not made by the Medical Assessment Tribunal.
• If you do not respond to the offer within the applicable period, it may be automatically deferred rather than accepted.

Because accepting a lump sum may permanently affect your rights, you should obtain legal advice before accepting, rejecting or deferring the offer.