While we should all be thankful that Australian states each have a workers’ compensation scheme to cover those injured on their way to or from, or while at, their workplace, the complexity of the schemes means you almost certainly need some expert legal guidance if you unfortunately find yourself in need of such compensation.
This is no different in NSW, where a number of legislative changes to the Workers Compensation Act 1987 and other regulatory changes in the intervening years have created a fairly complex system, both when it comes to making a claim and also in terms of how your claim is assessed.
If you’re injured at work there are a number of ways you can claim compensation. Depending on the seriousness of the injury and the time you need to take off work, weekly workers’ compensation payments can be paid to you. You can also be entitled to reimbursement of medical expenses, loss-of-income payments in case you are unable to work because of the injury, and payment of a lump sum amount for any permanent injury.
When it comes to permanent injury, a common question asked by people is how this is assessed, which is the primary subject of this article.
Assessing a permanent injury
A permanent injury is understood as one which has stabilised and resulted in ongoing impairment that is unlikely to change within the next 12 months, meaning the injured person has reached what is called ‘Maximum Medical Improvement’ (MMI). It can refer to the impairment of both the physical and/or mental ability of an injured worker.
The degree of permanent impairment that results from an injury is assessed by reference to the NSW Workers Compensation Guidelines which compliments the American Medical Association Guides for the Evaluation of Permanent Impairment. Detailed tables and methods are used for evaluating the percentage of the injured person’s ‘whole person impairment’ (WPI), considering all the injuries by reference to pathology sustained in the accident.
A medical specialist trained in assessing impairment using the guidelines must conduct the assessment of an injured person as they present on the day, taking account of their relevant medical history and all available relevant medical information to determine:
- whether the condition has reached MMI;
- whether the claimant’s compensable injury/condition has resulted in an impairment;
- whether the impairment is permanent;
- the degree of permanent impairment that results from the injury;
- the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality.
The assessor must exercise their clinical judgement in making a diagnosis of permanent impairment and make deductions for any pre-existing injuries/conditions. They must then make clear the degree of impairment that results from the compensable injury/condition. Any deductions for pre-existing injuries/conditions are also to be clearly identified and calculated. If a related injury/condition had not previously been identified, its nature should be recorded in the report and any connection to the relevant compensable injury or medical condition specified.
Impairments arising from the same injury are to be assessed together. If there are impairments resulting from more than one injury sustained in the work accident, these are to be assessed together to calculate the degree of permanent impairment of the claimant.
There is an exception in the case of psychiatric or psychological injuries. Any impairments resulting from a psychological and/or psychiatric injury are to be assessed separately from the degree of impairment caused by physical injuries arising out of the same incident. The results of the two assessments cannot be combined. Impairment for secondary psychological injuries (conditions caused by for example, pain from physical injuries) are non-compensable.
The importance of timing and time limits
In NSW, the time limit to make a workers’ compensation claim is generally six months from the date of your injury or accident. You can still make a claim after this period but will need to show ignorance, mistake or absence from the State where you are making the claim as a reason/s for the late claim. A claim for injuries resulting in death or serious permanent impairment may be made within three years from the date of the injury or death.
It should be noted that the Workers Compensation Act allows an injured worker to only make one claim for permanent impairment compensation that results from any injury. After that, you can’t return and claim an increase in lump sum compensation, unless your condition deteriorates in the future.
This means the timing and assessment of a lump sum claim for WPI is very important. If you make such a claim too soon after the work incident and your WPI assessment is, for example, less than 10%, you will not receive any lump sum compensation and weekly payments will be limited to a maximum of five years and medical expenses for two years thereafter.
In NSW your date of injury (“DOI”) is also important. Different legislation applies depending on whether your injury was before or after 19 June 2012. Expert legal advice should definitely be sought if you’re unsure about which laws apply to your work injury.
Negligence and common law claims
If you believe your work injury was the result of negligence on behalf of your employer or workplace, you may also have a claim for damages through a common law claim, including for future and past economic loss (such as wages and superannuation).
Your assessment for WPI does affect, however, your ability to make a claim for negligence against an employer, in that you can only make such a claim if your WPI is assessed as 15% or greater.
The importance of legal advice
If your workplace injury results in permanent impairment, the workers’ compensation insurer may offer a lump sum amount against your compensation claim. This offer should only be considered after seeking advice from an experienced legal representative such as BPC Lawyers. This is because your response may prevent you later pursuing your common law right to claim damages from the injury, which potentially may be far larger than the lump sum on offer.
At BPC Lawyers, we offer a team of experienced workers’ compensation lawyers who have won multiple industry awards. We can explain whether your injury falls under Common Law or WorkCover and help you achieve the best outcome possible. Contact us today (02) 8280 6900 for a free initial legal consultation.