Rights to a WorkCover claim when a car accident happens on the way to or from work

Step 1: If you were on your way to work, coming home from work, or driving in the course of your employment, and involved in a car accident, then the first thing you want to look into is a workers’ compensation statutory claim. Don’t worry, this doesn’t mean you’re suing your employer – it just means that you’re claiming a right that you have as an employee to be covered by your employer’s workers’ compensation insurance. Being on a workers’ comp claim is beneficial because all your treatment and wages are covered by WorkCover Queensland (or the applicable self-insurer). The more you get onto rehabilitation, the quicker you’ll be able to speak to your medical team about getting back to work.

Step 2: If the accident was not your fault, then it’s a good idea to speak to a lawyer about issuing a CTP claim against the driver-at-fault. This is a completely different process to your Workers’ Comp claim – a process where the guidance of an experienced personal injuries lawyers would be helpful. Call one of our lawyers so that we can explain to you how both claims can run together at the same time. Ph: 1300 447 940.

Car Accident Claim Timeframes

The average claim takes 12-18 months. Factors that influence this timeframe include:

• The extent of your injuries and how much treatment you require
• The complexity of the traffic accident
• Multiple injuries that require different types of treatment
• How many medico-legal assessments are required
• Types of expert and non-expert evidence needed to prove your claim
• Whether your claim goes beyond the pre-court process and into the litigation phase

Personal Injuries Are Personal

What exactly are ‘personal’ injuries? It refers to damage done to the person, rather than to something like property. Injuries to the person can be physical or psychological. In order for a personal injuries claim to be successful, you need to prove that your injuries are the result of somebody else’s negligence. You can claim for physical injuries such as:

• Whiplash
• Soft tissue damage
• Musculo-ligamentous strains and sprains
• Injuries to the face, shoulders, wrists, hips, knees and ankles (e.g. broken jaws, rotator cuff tears, bursitis, tendinitis, subsequent adhesive capsulitis, dislocations)
• All spinal injuries including annular tears, disc bulges, fractures, nerve pain
• Quadriplegia, tetraplegia, paraplegia
• Fractures and broken bones
• Head and brain injuries
• Damage to internal organs
• Burns
• Scarring

Who To Sue When You Don’t Know Who Hit You

Didn’t manage to get the rego details of the vehicle that hit you? Whether you were a driver, motorbike rider, cyclist or a pedestrian, you still have rights to sue for your traffic accident injuries. It’s unfortunate to think that there are people out there who drive away from the scene of an accident. The reality is, it happens. Fortunately, when you don’t know who to sue for your injuries, a government body called the Nominal Defendant steps in. The Nominal Defendant steps in to ensure that those who are injured in a ‘hit and run’ still have rights to sue. The Nominal Defendant also steps in when the vehicle in question is unregistered. The Nominal Defendant will likely want to see what you did to try and identify the vehicle. Contacting the police straight away, to report the accident circumstances, is a good start. The traffic accident claim process runs the same way against the Nominal Defendant, however it is recommended that you contact a personal injuries lawyer as soon as possible as there are strict timeframes with issuing a claim against the Nominal Defendant. Talisman Lawyers will be happy to assist with a free over-the-phone consultation: 1300 447 940.

Fees Please

Big tip when making enquiries with an injury claim lawyer: Ask them about their fees! Legally, lawyers must provide you with costs disclosure at the time you decide to hire them. With this costs disclosure, you might become aware of the hourly rate of the lawyers and assistants working on your claim, or the cost of individual tasks expected to be undertaken. The number one issue with personal injury claims is that, while there might be an hourly rate or task-based rate that you are aware of, it is never really known what the final fees will be due to there being so many variables throughout the claim process. However, this doesn’t mean you should be kept in the dark! In our experience, we believe it’s possible to give a range of fee estimates that apply at different stages of the claim, depending on the initial instructions you provide about your injuries, treatment and accident circumstances. We believe it’s so important for people like you to feel empowered when you are on the search for an injury claim lawyer. Feeling empowered means better decision-making. We suggest asking the following questions in any preliminary discussions with a lawyer, even if it’s just over the phone:

1. How do you calculate fees?
2. Who will be working on my claim and how will they charge their time?
3. What kinds of experts might be required on my claim and how will this affect the costs (i.e. independent medical examiners / forensic accountants / barristers)?
4. What is the fee estimate range for my type of claim by the time we get to the end of the pre-court process?

Money Matters

New clients often ask (sometimes reluctantly), “How much money will I get?”. Firstly, there are no silly questions. Every question is important. Secondly, you will not know exactly how much money you will get when you start your claim. This is because your lawyer will need to organise an Independent Medical Examination (“IME”) with a specialist to be able to assess your impairment and how it impacts areas of your life. The IME cannot take place until your injury has stabilised. An injury is usually stable once you have gone through all the treatment and rehabilitation as recommended by your medical team. If there are multiple injuries such as physical injuries with a psychological injury (post-traumatic stress, anxiety, depression), then the physical and psychological injuries will be assessed separately with specialists relevant to that field. Once the IMEs are completed, this is normally the time when your lawyer can assess how much your claim is worth. We call this a ‘quantum assessment’. It is common for a barrister to be involved in this process. The assessment determines how much your matter is worth on the current evidence. Being armed with this knowledge is helpful for you and your legal team to be able to engage in meaningful negotiations outside of court. Knowing how much your claim is worth, along with an understanding of any risks associated with your case, empowers your decision-making ability with negotiations and instructing your legal team. If you are wondering what is involved in a quantum assessment, here is a list of factors that your legal team will consider:

• The injuries you sustained in the accident
• The extent of pre-existing injuries/illnesses that pre-date the accident
• Your age
• What you do for work and how your injuries will affect your ability to work
• How much wages you have lost and will continue to lose in the future
• Whether you need re-training (e.g. if you are unable to work as a labourer or manual handler then you may need to gain some other qualifications for a less manual role)
• Whether you have lost profits (applicable to business owners)
• How much you have spent on treatment and other medical expenses
• What kind of treatment you will need for the future
• The level of care and assistance you need
• Whether you have a refund to Medicare, Centrelink, and/or WorkCover

Starting the Car Accident Claim Process

Seeking compensation for injuries arising from a traffic accident is a relativity straight-forward process, but it’s not just about lodging a form with the CTP insurer and hoping for the best. The form needs to comply with a series of requirements as set out in legislation. Some of these requirements are that it must be accompanied by a: ➢ CTP Medical Certificate; and
➢ Traffic Incident Report. Once the initial form is considered compliant with legislative requirements, the next phase usually focuses on treatment and rehabilitation funding. This is a crucial phase that needs to be given full attention by you, your lawyer, and the CTP insurer. The treatment you receive (guided by your medical team) will likely have a significant impact on your ability to get back to the things that mean a lot to you. For some, it’s their ability to earn money, for others it might be their family or their studies. Whatever it is that your injury is holding you back from, it’s important to determine the best treatment for you and to speak to your lawyer about how they can organise funding with the CTP insurer. Generally, a CTP insurer will only fund treatment or rehabilitation that is recommended by a medical physician (e.g. GP). A written referral is the easiest way to prove this. An injury is classified as stable once you have gone through all the treatment and rehabilitation as recommended by your medical team. This can take months or even years – it depends on your injury and whether you have multiple injuries that need treatment. Stable injuries mean that your legal team can proceed to the next phase of the claim – Independent Medical Examinations. Please refer to our blog article ‘Money matters’ for further information about this part of the claim.

Treatment Funding & Reimbursement for Car Accident Victims

Many people who are injured in traffic accidents have no idea that they do not have to pay for their own treatment. If you are injured in a traffic accident that is not your fault, then the CTP insurer of the vehicle at fault must fund your rehabilitation needs (every car is covered by CTP insurance when the rego is paid). The treatment that the CTP insurer pays for depends on what your medical team recommends. We’ve seen many different types of treatment needs funded by the insurer. Here are some examples:

• Physiotherapy
• Chiropractic services
• Remedial massage
• Acupuncture
• Hydrotherapy
• Occupational therapy
• Psychological/psychiatric therapy
• Surgery