The NSW workers’ compensation scheme provides a tiered system of compensation; the more serious your injury, the longer your entitlement to compensation.

In assessing the severity of your injury, the scheme utilises an objective set of principles, known as the “American Medical Association Guidelines for Evaluation of Permanent Impairment, 5th Edition” (AMA5) complemented by a set of SIRA Guidelines.

These principles are applied by an accredited medical specialist, who assesses your condition and provides a whole person impairment rating (WPI).

It is quite common for the initial assessment to be undertaken by a medical specialist arranged by a worker’s legal representative. However, an insurer may also arrange for such an assessment, as and when they consider it necessary.

In the event there is a dispute between an injured worker and insurer as to the level of WPI, then an application to resolve this dispute can be lodged with the Personal Injury Commission (the Commission).

The Commission may appoint an independent medical specialist to make a binding assessment of WPI.

Consistent frustration workers express with this process is the small consideration pain is given in the assessment. Unfortunately, pain is difficult to verify clinically and is therefore treated with scepticism under the WPI system of assessment WPI.

Your right to compensation

Once your impairment rating is determined, then it is relatively easy to identify the rights to which you are entitled.

Essentially, your rights to workers compensation are as follows:

Medical and related expenses

WPI Entitlement
0%-10% 2 years following injury or last payment of weekly wage compensation, which is the later
11%-20% 5 years following injury or last payment of weekly wage compensation, which is the later
21% + Lifetime entitlement

 

Weekly wage compensation

WPI Entitlement
0-20% 130 weeks with the potential for a further 130 weeks (260 weeks in total) if the insurer determines you are either:

  • unfit for all work and unlikely to ever work again or
  • working 15 hours or more earning more than approx. $200.00
21% – 30% – high needs worker 130 weeks with the potential for a further entitlement up to aged pension age (plus 12 months), if the insurer determines you are either:

  • unfit for all work and unlikely to ever work again or
  • working 15 hours or more earning more than approx. $200.00
31% + – highest needs worker 130 weeks with the potential for a further entitlement up to aged pension age (plus 12 months), if you are either:

  • unfit for all work and unlikely to ever work again or
  • working 15 hours or more earning more than approx. $200.00

Exemptions

The above restrictions do not apply to ‘exempt workers’ which include ’emergency service’ workers, such as Ambulance Officers, Police Officers, and Firefighters.

For these workers, entitlements continue under a prior scheme of workers’ compensation. Whilst this scheme provides for less weekly wage compensation week to week, it provides for continued entitlement to medical and weekly wage compensation, together with compensation for pain and suffering.

Pre-requisites

The tables above summarise your potential entitlement. It must be remembered that entitlements are subject to you being able to prove that your time off work or need for treatment/therapy arises due to your work-related injury.

For weekly wage compensation payments, this requires you to obtain a WorkCover Certificate of Capacity from your Nominated Treatment Provider, certifying your work injury-related incapacity.

Also, some medical expenses require pre-approval from the insurer, whilst all expenses require medical support to confirm they are ‘reasonably necessary’ due to injury.

Conclusion

The limit of entitlement to workers’ compensation is entwined with the degree of WPI assessable. It is therefore important that you notify your treating doctor about all injuries you have sustained as early as possible, so as to ensure that all injuries are listed on your WorkCover Certificate of Capacity.

At some point during the lifetime of your claim, the insurer will make a decision as to your ongoing right to compensation.

The insurer must provide you with a decision in writing, whenever the decision is unfavourable to your claim.

If a written decision is not provided, you should ask for one.

If the insurer makes a decision to suspend your entitlements due to your WPI rating, then it is appropriate to obtain legal advice immediately.

You may have the right to obtain a medical assessment of your own to verify the insurer’s WPI assessment.

If you receive a decision from the insurer or otherwise consider that you have an injury that will attract a WPI rating of 11% WPI or greater, then we suggest you contact our office to obtain legal advice as to the options available.

BPC Lawyers can also provide you with advice on the insurer’s decision and make recommendations as to which other potential cause of action you may have against your employer.

For example, you might be entitled to initiate a claim in Work Injury Damages. This claim can be significant but requires:

  1. An impairment rating of at least 15% WPI, together with
  2. Evidence that your employer failed to provide for a safe system of work which caused you to suffer your injury.