INJURED WORKERS GUIDE TO WORKERS COMPENSATION

IN NEW SOUTH WALES

The system in NSW to compensate employees for injuries sustained during the course of employment is run by the WorkCover NSW. The WorkCover Authority of NSW is a statutory authority and is therefore within the control of the NSW State Government. Its primary objective is to achieve safe workplaces, effective return to work and security for injured workers.

WorkCover NSW has two main functions:

1. To ensure compliance with Occupational Health & Safety Legislation in NSW; and
2. Management of the NSW Workers Compensation System.

The NSW Workers Compensation System itself is governed. .by two separate acts of NSW Parliament:

• The Workers Compensation Act 1987; and
• The Workplace Injury Management and Workers Compensation Act 1998.

These two pieces of Legislation combined provide the rights and responsibilities of both an injured worker and an employer and the benefits payable to injured workers as a result of injuries sustained during the course of employment.

 

TYPES OF CLAIMS

There are two types of claims that can be made under the NSW Workers Compensation Legislation.

The first is a claim for Statutory Compensation under the "no fault" scheme and the second is a claim for modified common law damages as a result of injuries sustained due to the negligence of an employer known as Work Injury Damages.

 

1. STATUTORY COMPENSATION SCHEME


Who can make a claim for workers compensation?

 

The Workers Compensation Legislation defines a worker as follows:

• those that work for an employer as an employee under a written or oral
contract of service; or

• a "deemed worker" is a contractor who should be treated as
an employee as they only work for that one employer.

You are entitled to make a claim for compensation as a result of sustaining injury
during the course of your employment. This includes when you are on an authorised
break from your employment such as lunch or when you are travelling directly from your home to work or from work to home.

It is a "no fault" scheme which means that you do not need to demonstrate that your employer is at fault. You simply need to demonstrate that you have sustained an injury in the course of your employment.

How to make a claim?


If you have sustained an injury in the course of your employment then you must firstly put your employer on notice that you have sustained an injury. This requires you to inform your employer immediately of any injury and if possible provide written notice. The employer must then within 24 hours of such a notice advise its workers compensation insurer of the injury. You do not necessarily need to provide a written claim form.

Instead once the insurer has been told of the injury the following will occur:

• Provisional liability will be accepted and payments made within 7 days; and
• The insurer will then investigate the facts and decide to either accept or decline the claim.

You may also need at a later time to provide a written claim form if asked to do so by the insurer.

If the insurer has a reasonable excuse it does not need to accept provisional liability within 7 days. The insurer must provide details of the reasons for the excuse that they are not accepting provisional liability and they are then entitled to a further 21 days to determine whether or not they will accept your claim. If no decision is made within that further 21 days or the insurer declines your claim then you should contact your Lawyer immediately.

The insurer is required when it declines your claim to set out the reasons and the evidence it relies upon in a notice under Section 74 of the Workers Compensation Act.

Is there a time limit for making a worker’s compensation claim?

Yes. A claim for workers compensation needs to be made within six months from the date of the injury. Failure to make a claim within that six month period can be extended if it is found that the failure was a result of ignorance, mistake or absence from the state or other reasonable cause. You may be allowed up to three years after the injury to make a claim.

Any injury sustained during the course of your employment should however be reported immediately to your employer and recorded to ensure that you are able to make a claim if necessary.

What happens after my claim is accepted?


Once the insurer accepts liability for a claim then they will make payments of compensation in accordance with the Act.

The types of compensation payable will depend on the nature and extent of the injury you have sustained. However most injured workers are eligible for immediate payment in respect of:

• Payment of a weekly wage when totally or partially unfit to work
• Payment of all medical and other related expenses in relation to the accident
• The provision of rehabilitation services to assist you with a return to work
• Lump sum compensation for permanent impairment and pain and suffering
• Domestic assistance

The types of benefits payable

i. Weekly benefits

For the first 26 weeks that you are totally unfit for work, payments of weekly compensation are made at the award rate of pay. This does not include over time, 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 12 months prior to the injury and are made at a maximum of 80% of that weekly amount.

After 26 weeks of total incapacity workers compensation payments are reduced to the "maximum statutory rate". This amount varies depending on the number of dependants (i.e. spouse or children still at school or university if under 21). It is essentially a pension type scheme. For example if you have no dependants you are entitled to a maximum amount of $417.40 gross per week. You are not entitled to an amount that is greater than what you would normally have earned on a weekly basis. See Appendix 1 for a summary of the maximum statutory rates payable as at today. Benefits are increased each April and October in line with CPI.

If during or after the first 26 week period if you return to work on suitable duties but are earning less than you did before the injury then you are entitled to payment of your services for those hours that you are at work together with "make up pay" to equal your usual gross earnings prior to the injury. This amount is normally paid by the insurer to your employer and then passed on to you.

This "make up" pay is the difference between your normal gross weekly wage before the injury (including over time, shift work, payments for special expenses and penalty rates) and the actual weekly earnings that you are receiving after the injury. The amount of makeup pay is limited to the award rate for the first 26 weeks of partial incapacity and/or limited to the maximum statutory rate including payment of dependants, whichever is the lesser amount.

If you provide your employer with a WorkCover Medical Certificate certifying you fit for suitable duties and no such duties are provided by your employer then a special payment is made under the Act pursuant to Section 38. If no suitable duties are provided during the first 26 weeks of incapacity then payments are made at the award rate of pay excluding over time, shift work, payments for special expenses and penalty rates.

Between the 27th and 52nd week of incapacity, payments are then 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 52 week period compensation payments are then made at the maximum statutory rate.

Weekly benefits are paid until either you are fit to return to your former employment or you are able to earn in some other suitable employment the equivalent of your normal gross weekly wage before the injury (including overtime, shift work, payments for special expenses and penalty rates).

Payments are stopped when you reach the first anniversary of your statutory retirement age (now usually at age 68).

ii. Medical expenses


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

You need to provide to the insurer a copy of any accounts/receipts for reimbursement of the expenses, you, have incurred. You should give to your medical providers your claim number and request that they send their accounts direct to the insurer for payment.

The insurer can however decline payment of any treatment expenses it does not believe them to be reasonable and necessary. An insurer may dispute treatment on the basis that they do not think that the treatment is reasonable or that such treatment is unlikely to assist in your recovery.

An insurer can also decline liability if they have medical evidence' which state that your injury is not or is no longer work related.

If either of these things should occur you need to contact your Lawyer immediately.

iii. Rehabilitation Services


Rehabilitation is the treatment of an injury with a view to returning you promptly and safely to your former employment duties. The workers compensation insurer will appoint a rehabilitation provider to assist you and your employer to agree on a return to work plan.

If a return to your former duties is not possible due to your injury, then an attempt will be made to return you back to the same employer in a different position or if this is not possible to retrain you in a new skill or new job, whether that is with your former employer or not. A rehabilitation provider will liaise with both you, your employer and your treating doctors to return you to work.

There can be many disputes that arise as a result of a return to work plan and you should contact your Lawyer for assistance in this regard.

iv. Lump sum compensation for permanent impairment and pain and suffering.


An injury can result in a permanent impairment. A permanent impairment is an injury which has not completely resolved and continues to cause pain and restriction of movement. If you have a permanent impairment then you may be entitled to receive a lump sum payment in addition to payments of medical expenses and weekly compensation.

It is important to understand that payment of a lump sum for permanent impairment and pain and suffering does not end your entitlements to ongoing payment for medical expenses and weekly payments. It is a payment in addition to those benefits and is payable regardless if you also are receiving payments for weekly payments or medical expenses.

To obtain compensation for permanent impairment you will need to be assessed by a specialist medical practitioner usually arranged by your Lawyer who is trained in the assessment of impairment under the Workcover Guides to the Evaluation of permanent impairment. The Guides assess a percentage “whole person impairment”(WPI) having regard to the nature and extent of your injuries. It is an objective assessment based mainly of the clinical findings found when the doctor examines you and your x-rays/scans rather than your description of what pain and restrictions you experience from day to day.

The Doctor will then assess a percentage WPI which is applied to a table to determine the amount of compensation payable. For example a 5% WPI = $6875 and a 15% WPI = $22,000. A summary of the benefits payable is attached as Appendix 2.

If you receive an assessment of 10% WPI or greater then you are entitled to a further lump sum for pain and suffering. This is a maximum amount payable to a most extreme case of $50,000. You would receive a proportion of that maximum amount of $50,000 having regard to the extent of your pain and suffering compared to a most extreme case(such as a quadriplegic). Every case is different however a common amount paid is $10,000 or 20% of a most extreme case.

The amount payable is determined at the time the assessment by the doctor is made. If your condition gets worse at a later time you can return and claim an increase in the percentage WPI as well as further pain and suffering.

v. Domestic Assistance


If you have an assessment of WPI of 15% or greater you can also make a claim for Domestic assistance. This includes payment for nursing care, household cleaning, gardening and other care and assistance for tasks that you would have undertaking in and around the home but are now unable to do so as a result of an injury. It is payable for the remainder of your life as long as such care and assistance is reasonable and necessary.

Can the insurer close my claim?


A claim for Workers compensation is never closed. It can always be reopened if circumstances change. A change in circumstances may be;

• The need for further medical treatment
• A deterioration in your injury such that you are no longer able to work or are only partially able to work.
• A deterioration in the injury such that the % WPI is now greater

In all such circumstances a further claim can be made and the Workers compensation insurer can be asked to “re-open” the claim.

There are however two exceptions to this if you have resolved a claim by way of a Commutation or Work injury damages. This brings an end to all rights to claim any further benefits under the Workers Compensation Act. You can never return and claim any compensation even if your condition gets worse.

What is a Commutation?


A commutation is an agreement between you and the Workers Compensation insurer (which requires approval from Workcover) to pay a lump sum amount which represents a proportion of the liability the insurer has to pay you ongoing weekly benefits until retirement age and medical expenses for life.

Usually this represents a calculation of the remaining benefits likely to be paid by the insurer to you and for the insurer to pay to you a lump sum representing an agreed proportion of that amount now, up front, rather than receiving ongoing payments weekly until retirement age.

If you had say 10 years until retirement age and were receiving $417.90 per week and not much in the way of ongoing medical treatment then the insurer may pay ½ of your remaining entitlements up front i.e. 5 x 52 x $417.90 = $108,550.

Every claim is different and this is a very general assessment for illustrative purposes only, an insure may be more or less depending on each individual circumstance.

There are a number of pre-requisites to being able to do a commutation and they include;

• You must have a WPI of 15% or greater
• All attempts at rehabilitation must be exhausted
• You must have been in receipt of weekly benefit for a continuous period of at least 2 years.
• A Commutation requires approval by the Workcover Authority of NSW.


2. WORK INJURY DAMAGES



In addition to the "no fault" scheme above is an entitlement by an injured worker to obtain lump sum compensation for “modified common law damages”. To make such a claim you must be able to demonstrate on the balance of probabilities that the injury was sustained as a result of the fault of the employer.

You may be able to sue your employer as a result of your employer’s failure to take reasonable care of you whilst in the course of your employment. That is, that the employer was “at fault” in causing your accident.

To be eligible to make such a claim you must be able to demonstrate the following:

• You must be able to demonstrate negligence on behalf of your employer or a fellow employee. Negligence is a breach of your employer’s duty to take reasonable care whilst you are in the course of your employment.

• You must also have a permanent impairment equal to or greater than 15% whole person impairment assessed by an independent doctor appointed by the Workers Compensation Commission or as agreed with the insurer.

If both of these matters can be established then you have an entitlement to seek payment of compensation in the form of damages. This is known as a Work Injury Damages claim.


What compensation can I receive under a work injury damages claim?


Damages are a form of monetary compensation payable as a one off lump sum. Damages are usually payable for things such as pain and suffering, past and future medical expenses, past and future loss of income and past and future care and assistance.

The Workers Compensation Legislation however has modified the Common law of Australia and restricted an employee’s entitlement to damages by allowing payment of compensation for loss of income only.

Damages are only payable to cover past and future loss of income. You are not entitled to claim damages for pain and suffering, future medical treatment or future care and assistance.

If you elect to proceed with a claim for work injury damages and are successful in obtaining a lump sum amount to represent your past and future loss of income then your remaining entitlements to workers compensation cease. You are no longer entitled to claim any weekly compensation, medical expenses (past or future), domestic assistance or rehabilitation assistance. It is a full and final settlement of your rights and entitlements under the Workers Compensation Act.

The Carr Labor Government in 2002 took away the rights of workers to claim proper compensation for injuries suffered at work as a result of the negligence of an employer. The law remains today despite a change to Liberal government in March 2011.

It is an entirely unfair law as if you can sue a non-employer as a result of negligence then your compensation is not restricted as above and you are likely to receive twice the amount of compensation. A different outcome for the same injury depending on if it was your employers fault or someone else is unjust but that is the law today in NSW.

It is always important therefore to consider if someone other than an employer may be responsible for the injuries sustained as the compensation payable is much greater.

Conclusion 


The Workers Compensation system in NSW is complex to say the least and you should always seek the advice of an expert lawyer preferably a NSW Law Society Accredited specialist in personal injury law.
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Matthew Garling is an Accredited Specialist in Personal Injury Law.