Employers often ask us whether a worker can claim for damages if they haven’t filed a compensation claim. Many employers are surprised to hear that the answer is “yes”. Below are answers to seven Frequently Asked Questions on the topic, to ensure you aren’t surprised by a worker’s claim for damages.
Question:
Why can a worker claim damages without first making a statutory compensation claim?
Answer:
Sometimes a worker can suffer an injury at work for which they don’t make a compensation claim. There may be many reasons for this. For example, the worker may be stoic, hoping the injury will eventually recover, or concerned that making a compensation claim might reflect badly on their employment. However, sometimes the injuries do not recover. If the worker changes employment and the injury affects their ability to obtain or perform new employment, the worker may decide to make a damages claim without first making a compensation claim.
Question:
How long does a worker have to make a statutory compensation claim?
Answer:
In Queensland, generally speaking, workers covered by the Workers Compensation and Rehabilitation Act 2003 (the Act), have up to six months from the date of injury to make a claim for statutory compensation, but there are exceptions.
Question:
How long does a worker have to make a damages claim?
Answer:
In Queensland, generally speaking, a worker has three years from the date of injury to make a damages claim, but there are exceptions.
Question:
What is the process for a worker who makes a damages claim against an employer without first making a statutory compensation claim?
Answer:
An injured worker can make a damages claim without first making a statutory compensation claim, but the damages claim cannot proceed until WorkCover Queensland, or a workers’ compensation self-insurer, investigates whether the worker was in fact a “worker” who suffered an “injury”, as those terms are defined in the Act. If it is finally determined that the worker was either not a “worker” or did not suffer “injury” as defined, the worker cannot proceed with the damages claim.
Question:
Is it possible for a damages claim to be made against the employer even if there was no report of the incident?
Answer:
Yes, although in that situation it may be more difficult for the worker to prove he or she suffered an injury and therefore gain entitlement to proceed with the claim.
Question:
What can I do to assist WorkCover Queensland or a self-insurer investigate the damages claim?
Answer:
The same things you would do to assist investigations in any compensation or damages claim. For example, providing documents or access to witnesses who support or disprove the injured worker’s allegations.
Question:
What can I do to reduce the risk of a damages claim being made without prior knowledge?
Answer:
Have a rigorously enforced injury/incident reporting system and awareness of the health and safety of your workers. As always, effective rehabilitation and an ongoing relationship between workers and employers will go a long way to reducing the likelihood of an injured worker making a damages claim.
We hope these FAQs clear up some of the misconceptions around damages claims. Should you have any further questions, please don’t hesitate to contact our Insurance Partner, Cameron Seymour, on 07 3224 0360.
