Can I sue my employer with less than 6% degree of permanent impairment (DPI)?
You’ve suffered a work-related injury and have a permanent impairment because of it. You want compensation. Of course, you do. But, your DPI is less than 6%. So, can you really go for it?
Well, the 2013 6% DPI threshold for workplace injuries was repealed in 2015, meaning if you sustained an injury before or after the period from 15 October 2013 to 30 January 2015, then the 6% DPI threshold does not apply to you.
In simpler terms – anyone who sustained an injury during that period can sue for damages at Common Law, whether you achieve a permanent impairment rating of 0% or 80% on your permanent impairment assessment – it does not matter.
Can I get work accident injury compensation?
Under what circumstances am I still subject to the 6% DPI threshold?
However, if you have unfortunately sustained your work injury during the period of the Newman legislation, that is between 15 October 2013 to 30 January 2015, then you are still subject to the 6% DPI threshold when it comes to bringing a Common Law damages claim for your work injuries.
So what happens if my work injury is subject to the 6% DPI threshold legislation?
If you wish to sue your employer for your work injury in Queensland, you can only do so if you have received a Notice of Assessment from Workcover Queensland or the workers’ compensation self-insurer.
This will state that you have achieved a total Degree of Permanent Impairment for your injury, assessed under the Guide for Evaluation of Permanent Impairment (GEPI), at greater than 5%. This means that you need a permanent impairment assessment of at least 6% to be able to bring a Common Law claim for damages for your work injury (sue your employer for damages). Permanent impairment assessments must be carried out by medical professionals.
In Queensland, the degree of permanent impairment is expressed as a percentage of whole person impairment, which takes into account the extent of impairment across all areas of the body caused by a compensable injury. Whether or not the injury has reached maximum medical improvement is a critical factor for medical practitioners when determining the final degree of permanent impairment.
It is important to note that physical injuries and psychiatric injuries are not combined.
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Will the degree of permanent impairment for my physical injuries be totalled separately to any psychiatric injuries?
Yes. They cannot be added together to provide you with a total of 6%.
However, if you achieve a total Degree of Permanent Impairment for your physical injuries of 6%, but you do not achieve a total of 6% for your psychiatric injuries, you can still bring a Common Law claim for all of your injuries, both physical and psychiatric and vice versa.
You only need to achieve a total Degree of Permanent Impairment of 6% for either your physical or psychiatric injuries to achieve entitlement to sue for compensation and damages.
If you receive your Notice of Assessment and you do not achieve a total Degree of Permanent Impairment for your physical or psychiatric injury of 6%, then you have no entitlement whatsoever to pursue a Common Law claim against your employer.
Can I have my permanent impairment assessment reviewed?
Yes, you can seek to have your Degree of Permanent impairment reviewed in an attempt to achieve a DPI of 6%. However, the review process can vary depending on the type of injury you have.
If you have a psychiatric injury, your options for review may be limited. A Medical Assessment Tribunal (MAT) is typically responsible for assessing the DPI for psychiatric injuries, and their determination is generally considered final. If you wish to appeal their decision, you would need to pursue a judicial review.
If you have sustained a physical injury, you may have more options for review. You can request that your injury be re-assessed by another doctor, but the decision to agree to this review is up to your workers’ compensation agency or self-insurer. If they do not agree to the reassessment, your case may be referred to a MAT.
If you do go through with the reassessment by another doctor, and you’re still not satisfied with the DPI assessment, you may seek further review. However, you cannot have your injuries reviewed again by another doctor – your only avenue for further review is for your injuries to be assessed by a Medical Assessment Tribunal.
Keep in mind that the Workers’ Compensation & Rehabilitation Act 2003 dictates that the impairment assessment made by a Medical Assessment Tribunal is generally final. Any review of their decision would typically involve a judicial review under the Judicial Review Act 1991.
What is a judicial review & Medical Assessment Tribunal?
If a worker is successful in their application for Judicial Review to the Supreme Court of Queensland, then the Court does not determine the Degree of Permanent Impairment at the time of Judicial Review, but refers the matter back to the MAT for re-assessment.
The Court can place conditions upon the MAT in relation to its re-assessment.
Given that a Medical Assessment Tribunal is made up of medical experts in the relevant speciality appropriate to the injury to be assessed, in most cases, it will be very difficult to successfully overturn a decision of a Medical Assessment Tribunal on the appropriate Degree of Permanent Impairment of an injury by way of Judicial Review.
This would seem to be supported by the recent decision in Stagg v North & Ors (2014) QSC 14 handed down by His Honour Justice McMurdo in the Supreme Court at Brisbane in February 2014.
In that case it was argued that the MAT had failed to take relevant matters into consideration when applying the AAMI Guides for assessment of injury, including a medical specialist report and submissions by the worker on this issue.
The worker failed in his application for Review as the Court held that on Judicial Review, it was not for the Court to consider the merits of the decision of the Tribunal or the merits of how the MAT applied the AAMI Guides in its assessment of the work injury.
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Are there time limits for seeking review in common law claims?
If you wish to have your Degree of Permanent Impairment stipulated in your Notice of Assessment reviewed, you need to seek such review within 20 business days of receiving the Notice of Assessment.
If you are seeking Judicial Review of a decision on your Degree of Permanent Impairment by a Medical Assessment Tribunal, then you will need to apply to the Supreme Court of Queensland within 28 days of receiving the decision of the Tribunal.
It is important to point out that if you achieve a Permanent Impairment Assessment above 0%, then you will also be made an offer of Lump Sum Statutory Compensation in your Notice of Assessment.
If the total Degree of Permanent Impairment for your injuries is less than 20%, then you need to decide if you wish to take the Lump Sum Offer or pursue a Common Law Claim, as you cannot do both.
Your physical and psychiatric injury impairments are taken separately when calculating your total Degree of Permanent Impairment – they cannot be added together.
If you take the lump sum offer for either your physical injuries or your psychiatric injuries or both, when either or both are less than 20%, then you cannot pursue a Common Law claim for those injuries with a total Degree of Impairment at less than 20% for which you have accepted a lump sum offer, and your decision is irrevocable.
Seek legal advice as soon as possible upon receiving a notice of assessment
It is very important that you seek legal advice as soon as possible upon receiving a Notice of Assessment to ensure that you do not lose rights to significant compensation by an incorrect response to the Notice of Assessment.
Of course, to make a Common Law claim against your employer worthwhile to pursue, you must be able to show there has been some negligence on the part of your employer that has caused your injuries.
You will need to show that your injury resulted from your employer failing to take reasonable care for your safety whilst you were undertaking your work.