Two separate systems apply when a worker is injured in Queensland.
A workplace injury in Queensland triggers two distinct legal frameworks that run in parallel and do not always point in the same direction. The first is the statutory scheme under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA), administered by WorkCover Queensland. It provides no-fault benefits: medical expenses, weekly income replacement, and a lump sum for permanent impairment. The second is a common law damages claim against the employer for negligence. It requires fault to be established, but if it succeeds, the damages available are considerably larger and cover losses the statutory scheme does not.
Understanding which system applies, in what sequence, and what choices must be made along the way, matters from the moment an injury occurs.
Who is covered by the statutory scheme.
The WCRA defines a “worker” broadly under s 32. It covers employees, and also certain categories of persons engaged under contracts who are, in substance, working for an employer rather than operating an independent business. Contractors who are not genuinely independent are commonly caught by the definition. The test turns on the reality of the relationship, not the label the parties have given it.
To be compensable, the injury must arise out of or in the course of employment. This includes injuries sustained at a workplace, injuries sustained travelling for work-related purposes (but not ordinarily the commute to and from home), and diseases or conditions caused or aggravated by the work environment. A worker who develops a musculoskeletal condition from years of heavy lifting, or a psychological condition from prolonged workplace stress, is not excluded simply because the harm accumulated over time rather than resulting from a single incident.
Notifying the injury and lodging a claim.
The WCRA requires a worker to give notice of injury to their employer as soon as practicable after the injury occurs: s 131. Early notification is not a bureaucratic formality. It creates the record that supports the claim, allows the employer to implement whatever immediate measures are needed, and starts the statutory process.
A claim for compensation under s 132 must be lodged with WorkCover Queensland. WorkCover will then investigate and decide whether to accept the claim. Once a claim is accepted, the worker is entitled to the statutory benefits the scheme provides.
The statutory benefits include payment of reasonable medical and rehabilitation expenses, weekly benefits equal to 85% of normal weekly earnings during the period of incapacity (subject to a maximum), and, where the injury results in permanent impairment, a lump sum assessed under the degree of permanent impairment (DPI) framework. The weekly benefit rate adjusts over time, and the applicable percentages depend on the duration of incapacity and whether the worker has some residual capacity to work.
The common law pathway: when a larger claim is available.
The statutory scheme is not the ceiling. Where an employer’s negligence caused the injury, the worker may pursue a common law damages claim that covers the full range of personal injury losses: past and future economic loss, pain and suffering, and the cost of care. Common law damages are assessed on the same principles as any other personal injury claim under the Civil Liability Act 2003 (Qld).
The right to pursue a common law claim is not automatic. Under WCRA s 237, a worker who has received a Notice of Assessment from WorkCover must elect, within six months of receiving that notice, whether to accept the statutory lump sum or pursue a common law claim. This election is a critical decision point. Accepting the statutory lump sum and signing a release forfeits the common law claim. The six-month window is not extended by oversight or inaction.
There is also a threshold. Under WCRA s 305A, a common law claim for damages in a work injury matter requires that the worker’s degree of permanent impairment reaches 6% or more, assessed on a whole-of-person basis, or that the circumstances involve a recognised exception. Below that threshold, the worker’s remedy is the statutory scheme only.
What “degree of permanent impairment” means in practice.
The DPI assessment is a medical evaluation conducted by an approved medical specialist using standardised criteria. It translates injury into a whole-of-person percentage. A shoulder injury might assess at 5% whole-of-person impairment. A spinal injury with ongoing neurological effects might assess at 15% or higher.
The threshold of 6% is not a bar to receiving statutory benefits. A worker below the threshold still receives medical expenses and weekly benefits for the period of incapacity. The threshold operates only to determine whether a common law claim is available. Where a worker’s injuries are serious but the formal DPI assessment comes in below 6%, the consequences of that assessment are significant and the medical evidence leading to it deserves careful scrutiny.
The DPI assessment also forms the basis of the statutory lump sum payment under the scheme for those who do not pursue common law. The lump sum amount is calculated from the assessed percentage according to a legislative table, adjusted periodically.
Employer negligence: what must be established.
A common law claim against an employer for a work injury is a negligence claim. The claimant must establish that the employer owed a duty of care, breached it, and that the breach caused the injury. Employers have a well-established duty to provide a safe system of work, adequate equipment, appropriate training, and competent supervision. Failure in any of those respects can constitute a breach.
Contributory negligence by the worker is a live issue in work injury claims. A worker who fails to follow a safe work procedure, ignores a known hazard, or uses equipment incorrectly may have their damages reduced proportionately under the CLA s 23 contributory negligence framework. A reduction of 10 to 25% for contributory negligence in work injury cases is not unusual. Larger reductions are available where the worker’s own conduct was a substantial cause of the accident.
Work injury common law claims are also subject to the WCRA’s offset provisions. Statutory benefits already paid, including medical expenses and weekly benefits, are deducted from any common law damages award or settlement. A worker cannot recover the same loss twice.
What to do immediately after a workplace injury.
The steps taken in the days after a workplace injury can affect the statutory claim, the common law claim, and the evidence available for both. The sequence that generally protects the most options is straightforward.
Report the injury to the employer as soon as possible and in writing where practicable. Seek medical attention and ensure the treating practitioner is aware the injury is work-related. Lodge the WorkCover claim promptly. Obtain and keep all documentation related to the incident: incident reports, any photographs of the scene or the hazard involved, and the names of any witnesses. Seek legal advice before making any decision about electing between the statutory lump sum and a common law claim.
The election between the statutory lump sum and the common law pathway is the most consequential decision in a work injury matter, and it is irreversible. It should not be made without understanding the full picture of what the common law claim might be worth. For further information on work injury claims, including the common law process, see the workers’ compensation page.
If you would like to discuss your matter, you can book a consultation or call (07) 5554 6116.
