Who can make a claim for workers compensation?

The definition of a worker includes:

  • Those that work for an employer as an employee under a written or oral contract of service;
  • A “deemed” worker, that is contractors who should be treated as employees.

If you fall in to one of the above categories and have sustained an injury either in the course of your employment or either travelling to or from work then you are entitled to make a claim for compensation. Mostly it does not matter whose fault it was that caused the injury.

How to make a claim?

To make a claim you must advise your employer that you have sustained an injury and provide medical information. An employer must within twenty four (24) hours advise the workers compensation insurer of the injury.  You do not need to provide a written claim form. Instead, once the insurer has been told of the injury the following will occur:

  • Provisional liability and payments will start within seven (7) days and;
  • The insurer will investigate the facts and decide to either continue or stop further payments;
  • You may need to at a later time, provide a written claim form if asked to do so by the insurer.

The insurer can not accept provisional liability within seven (7) days if it has a reasonable excuse. To do so, the insurer must provide details of that reason or excuse and then they are entitled to a further twenty-one (21) days to determine whether they will accept provisional liability.

After accepting provisional liability and investigating the matter, the insurer needs to determine if the following has occurred: –

  • The person is a worker or a “deemed” worker;
  • The injury occurred at work or on the way to or home from work and that work is a substantial contributing factor to the injury;

If the insurer declines liability for a claim, then you should contact your solicitor who specialises in workers compensation matters immediately.

Is there a time limit for making a workers compensation claim?

Yes. A claim for workers compensation should be made within six (6) months from the date of the injury. Failure to make a claim within six months can be extended if it is found that the failure to make the claim was as a result of ignorance, mistake, absence from the State or other reasonable cause. You then have up to three (3) years after the injury to make a claim.

What benefits are payable when my claim is accepted?

This can depend on the type, nature and severity of your injury.  However most injured workers are eligible for payment of: –

  • Weekly benefits;
  • Medical expenses;
  • Rehabilitation and the provision of rehabilitation services.

At a later time you may also be entitled to obtain: –

  • A lump sum for permanent impairment and/or pain and suffering.
  • Weekly benefits

For the first twenty-six (26) weeks that you are totally unfit for work, workers compensation payments are made at the award rate of pay. This does not include overtime, shift work, payments for special expenses or penalty rates. If you are not employed under an award, payments are based on what you earned over the previous twelve months prior to the injury.

After twenty-six weeks of total incapacity, workers compensation payments are reduced to the “maximum statutory rate”. This amount varies depending on the amount of dependents you have.  It is essentially a pension type scheme.  For example, if you have no dependents you are   entitled to a maximum of $367.70 gross per week. If you have a dependent spouse and 2 children you are entitled to $522.60. You are not allowed to earn an amount greater than your normal gross weekly wage.

If you return to work on partial duties and earn less than before the injury (usually because you are working part time hours or suitable duties) then they are entitled to payment of your services for those hours that you are at work together with “make up” pay. This will be paid by the insurer to the employer and passed on to you.

If you are earning less money than you were prior to the injury, then your “make up” pay is the difference between your normal gross weekly wage before the injury (including over time, shift work, payments of special expenses and penalty rates) and the actual weekly earnings after the injury (i.e. the value of the hours worked).

The amount of “make up” pay is limited to the award rate for the first twenty-six weeks of partial fitness for work and is limited to the statutory rate, including dependents, for any weeks after the first twenty-six weeks.

It is common for small employers not to be able to provide a worker with any suitable duties after they have sustained an injury. If you have provided your employer with a medical certificate certifying you are fit for suitable duties and none is provided, then a special payment is made under the Act pursuant to Section 36. For the first twenty-six weeks of the incapacity, payments are made at the award rate of pay excluding overtime, shift work, payments for special expenses and penalty rates.

Between the 27th and 52nd week of incapacity, payments are made at 80% of the award rate of pay excluding overtime shift work, payments for special expenses and penalty rates. This payment is made for a maximum of 52 weeks. After that period expires, compensation payments are at the statutory rate.

Weekly benefits are paid until either you are certified fit to return to your employment or able to earn in some suitable employment, the equivalent of your normal gross weekly wages before the injury (including overtime, shift work, payments for special expenses and penalty rates) or you reach the first anniversary of your statutory retirement age (usually at age 66).

  • Medical expenses

You are entitled to payment of all reasonable and necessary medical treatment associated with the injury. This includes the cost of any travel in order to receive such treatment.

Unfortunately, under the Legislation the insurer only has to pay such medical treatment once it has been paid by you or owing to a medical provider by you. You are unable to obtain an order that the insurer pay your future medical treatment. You are only entitled to claim repayment of past medical treatment incurred. Often an insurer will decline to meet payment of medical expenses on the basis that they are not “reasonable and necessary”. If this occurs, you should contact your solicitor immediately.

The insurer can however decline liability if they have medical evidence which states that your injury is not or no longer work related. Should this occur contact your solicitor immediately.

  • Rehabilitation and the provision of rehabilitation services

Rehabilitation includes treatment of an injury in an attempt to return you promptly and safely to your former duties. It involves the insurer, a rehabilitation provider, your employer and yourself to cooperate and participate in an injury management scheme to ensure your return to work.

If a return to your former duties is not possible due to your injury, then an attempt is made to rehabilitate you back to work in a different position or retrain you in to a new skill or new job, whether that is with your former employer or not. It is usual after the injury that a rehabilitation provider is appointed by the insurer to liaise with you, your employer and your treating doctors to return you to work.

There are often numerous disputes which occur during the rehabilitation process some of which your solicitor may be able to assist. If you have any questions regarding rehabilitation please contact your solicitor or review the attached guide to injury management.

At a later time you may also be entitled to obtain the following: –

  • Lump sum for permanent impairment and pain and suffering

An injury can result in a permanent impairment.  If you have a permanent impairment then they may be entitled to receive a lump sum payment under the Act.

To claim lump sum compensation you are examined by a medical practitioner (usually appointed by your solicitor) who determines the degree of permanent impairment using the WorkCover “Guides for the Evaluation of Permanent Impairment, Volume V”.

Once the doctor has determined the percentage “whole person impairment” using the guides, then the lump sum benefit is determined having regard to a table in the Act which allows a dollar amount for each percentage of whole person impairment.

The insurer will then have you examined by their own doctor to determine the percentage “whole person impairment” using the same guidelines. The doctors should reach an assessment which is similar. If this is the case then the lump sum claim is usually resolved by agreement with the insurance company.

If however the assessment of the percentage “whole person impairment” is significantly different, you will be required to attend an independent doctor appointed by the Workers Compensation Commission. That doctor is independent of the insurer and independent of you. The assessment of the percentage “whole person impairment” assessed by the independent doctor is usually final and binding with a limited right of appeal.

If you obtain an assessment of 10% whole person impairment or more, then you are also entitled to receive a further lump sum for “pain and suffering”. This is a lump sum in addition to the amount payable for permanent impairment.  The amount payable for pain and suffering is determined by comparison of your injuries to that of “a most extreme case”. You are entitled to a proportion of $50,000.00 depending on the extent of your “pain and suffering”.  The usual amount received is approximately $10,000.00.

Work injury damages

You may be able to sue your employer for negligence for an employer’s failure to take reasonable care of you whilst in the course of employment.

To be eligible to take action for Work Injury Damages, the following must be met: –

  • You must be able to demonstrate negligence by the employer or a fellow employee. Negligence is a breach of the employer’s duty to take reasonable care whilst in the course of your employment;
  • You must have a permanent impairment equal to or greater than the 15% whole person impairment assessed by an independent doctor or as agreed with the insurer;
  • Such a claim can not be started for at least six months after you gave notice of the injury and not more than three (3) years after the date of the injury.
  • A Work Injury Damages claim seeks compensation in the form of damages. Damages are paid as a “once off” lump sum. Damages are only payable to cover past and future wage loss.  You are able to sue your employer for your full net loss of earnings in the past and in the future until retirement age. If a claim is settled or a verdict is made in your favour then all other entitlements to workers compensation benefits including medical expenses cease. If a Work Injury Damages claim is not successful, you may continue to receive weekly payments and medical expenses.

What is a commutation?

A Commutation is an entitlement to have your weekly payments of compensation and medical expenses paid out as a lump sum amount.

A commutation is only available in the following circumstances: –

  • You must have a permanent impairment that is equal to or greater than 15% whole person impairment;
  • You must be entitled to receive ongoing weekly benefits of compensation and must have received those benefits for at least the last two years;
  • All opportunity for injury management and return to work have been exhausted;
  • Compensation for permanent impairment and pain and suffering has been paid;

Once you accept a commutation, all further workers compensation benefits including payment of medical expenses cease. A commutation agreement must be approved and registered with WorkCover NSW. You must also obtain and certify that you have received independent legal advice about a commutation.

Conclusion

The process for a making a workers compensation claim is, on the face of it, simple. However this is rarely the case. There are often disputes between an employer and an employee about what occurred, whether notice of the injury was given, the correct rate of pay and a myriad of issues which are raised by workers compensation claims.

The Workers Compensation Commission is designed to deal with disputes in relation to workers compensation. The Commission however can only deal with some types of disputes including those in relation to liability and the amount of compensation you should receive including the lump sum for permanent impairment and pain and suffering.

There are a number of disputes however such as late payment of wages, non payment of medical treatment and the failure of the insurer to undertake their responsibilities under the Act properly, that can not be dealt with by a solicitor.  These enquiries should be forwarded to WorkCover NSW on 131 050. You should request to speak to a claims assistance officer who should be able to assist you in this regard.  If WorkCover NSW is unable to assist, then please do not hesitate to contact your solicitor.

The workers compensation system in New South Wales is complex and early advice from your solicitor is needed as soon as any dispute arises.

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