2019 Guide to Workers Compensation - Law Partners
 

Work Injury, Injury and Rehabilitation | 18 September 2019

What you need to know about workers compensation.

 

What is a workers compensation / WorkCover claim?

If you suffer an injury at work or get sick because of your work, you’re entitled to claim financial compensation to cover your losses such as lost wages, medical expenses and rehabilitation. In NSW this is referred to a workers compensation claim, however it’s sometimes referred to as a WorkCover claim.

 

 

Is WorkCover the same as workers compensation?

WorkCover is the old name for the New South Wales workers compensation scheme, but it’s a term that’s still frequently used. So essentially WorkCover and workers compensation refer to the same scheme.

 

What will workers compensation / WorkCover pay for?

If you have a work-related injury or illness, workers compensation pays for your financial losses and the expenses you incur in the course of recovering. The higher your level of impairment from your injuries, the more your entitlement to income and medical expenses may be extended. If you have a permanent impairment you may also be able to claim lump sum compensation.

 

How are workers compensation / WorkCover payments calculated?

Payments are calculated based on the extent of your injuries, the expenses you’ve incurred and the amount of time you need off work because of your injuries.

If your work injury results in loss of earnings, here’s a summary of how your weekly payments are calculated:

Provisional payments

While your claim is being assessed by the insurer, you may be entitled to weekly payments and medical expenses. Provisional payments may continue for up to 12 weeks, and payment of medical expenses during this period can be up to $7,500. This period also gives the insurer more time to make a decision on liability.

First entitlement period (weeks 0-13)

You’ll receive up to 95% of your pre-injury average weekly earnings, or the maximum weekly compensation amount – whichever is less.

Second entitlement period (weeks 14-130)

Your weekly entitlements will depend on your capacity to return to work. If you’re working:

  • 15 hours or more a week, you’ll receive 95% of your pre-injury earnings less your current earnings
  • Less than 15 hours a week, you’ll receive 80% of your pre-injury earnings less your current earnings

Weeks 131-260

You may continue to receive payments after 130 weeks where:

  • You’ve been assessed by the insurer as having no current work capacity, and this is likely to continue indefinitely, or
  • You’re working at least 15 hours per week and this is likely to continue indefinitely AND
  • You applied for continued weekly payments after 130 weeks and this has been approved by the insurer.

 

Does workers compensation / WorkCover cover you to and from work?

Workers compensation / WorkCover in New South Wales doesn’t generally cover you for accidents travelling between your home and your regular workplace. However, you are covered if your journey was part of your work duty –  for example, driving from home to deliver equipment to a worksite. Once you’ve arrived at your place of work, any trips you make in the course of doing your job are covered. Here are some other examples of where you would be covered by workers compensation:

  • If you’ve been directed to pick up work mail on the way to work
  • If you’ve been directed to travel to a training course at a location other than your normal place of work
  • Travelling directly to a meeting, rather than going to the office first
  • If you’ve been Involved in an accident due to fatigue when travelling home after a double shift

 

Does workers compensation / WorkCover cover stress leave?

It’s possible to claim workers compensation for stress leave – this is referred to as a psychological injury. Insurers often deny psychological injury claims on the basis that the psychological injury occurred as a result of reasonable actions by management. However, a specialist workers compensation lawyer can look into the circumstances of your injury more deeply, often finding that management’s actions were in fact unreasonable, and liability is then accepted by the insurer.

 
If you’ve had a workers compensation claim denied for a stress-related illness, your best option is to speak to a specialist workers compensation lawyer and get legal advice on your options.

 

Are casuals entitled to workers compensation / WorkCover?

All NSW workers are covered by workers compensation, which was formerly known as WorkCover, including full time, part time and casual employees. As a casual employee you’re entitled to make a workers compensation claim if you’re injured at work or if you have an illness that was caused by your job.

 

What are the benefits of workers compensation?

If you have a work-related injury or illness, you may be able to claim benefits for lost income, medical expenses, travel expenses, domestic assistance, pain and suffering and permanent impairment.

 

How much is a typical workers comp settlement?

According to the latest statistics from Safe Work Australia, the median workers compensation amount paid in 2015-16 ranged from $10,700 for musculo-skeletal injures to $17,700 for work-related diseases. However, compensation amounts can be significantly higher for serious injuries and illnesses. In particular, if a serious workplace injury is the result of the employer’s negligence, then the injured worker can make a claim for work injury damages.

 
Work injury damages settlements are often in the hundreds of thousands of dollars. If you’re considering making a claim for damages, you should speak to a specialist personal injury lawyer and get professional advice.

 

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Workplace Injuries

 

What constitutes a workplace injury?

A workplace injury is any injury that happens while you’re working, where your employment is the main contributing factor. Workplace injuries can also happen while you’re on a break from work, travelling for work or visiting other workplaces in the course of doing your job.

 

What should you do if an injury occurs in the workplace?

  • You must notify your employer that you’ve sustained a work-related injury
  • You can also notify your employer’s insurer if you wish
  • You’ll need a certificate of capacity from a doctor – this is a medical assessment of your injuries, stating your capacity to work.

Once you’ve told your employer, the employer must notify their workers compensation insurer within 48 hours. If the injury or illness is considered serious or dangerous your employer must also notify SafeWork NSW. It’s important to note that your employer can’t force you to take paid or unpaid leave instead of lodging a workers compensation claim.

 
A claim for workers compensation should be made within six months of the date of the injury, however there are some situations where this time limit can be exceeded. If you’re unsure about whether you can claim, you should seek free advice from a specialist personal injury lawyer.

 

What is the most common type of workplace injury?

The most common workplace injuries are musculoskeletal injuries such as joint, ligament and tendon injuries, wounds and lacerations, fractures, burns and spinal injuries. However psychological injuries such as stress and PTSD can also occur in the workplace.

Although jobs involving lifting and physical activity are more likely to cause workplace injuries, office workers are also at risk and may be able to claim workers compensation for injuries relating to repetitive strain or poor ergonomic design of workstations.

 

What happens if I hurt my back at work?

If you hurt your back at work, you might be eligible for workers compensation to cover your financial losses and medical expenses. You should report the injury to your employer and submit a certificate of capacity from your GP confirming your ability to work. The employer has 48 hours to report it to their workers compensation insurer.

Back injuries can be serious and can take some time to stabilise, so it’s a good idea to talk to a specialist workers compensation lawyer and make sure you fully understand your options, including any entitlements to lump sum compensation.

 

How much can you claim for a back injury at work?

Compensation payments for back injuries range from tens of thousands of dollars to hundreds of thousands, depending on how serious the injury is. For less serious injuries, the latest data from WorkCover shows that the median claim for a spinal cord injury (in 2015-2016) was $19700. However, if your injury meets the 15% WPI (whole person impairment) threshold and occurred because your employer was negligent, you can make a common law damages claim, which may run into hundreds of thousands of dollars in lump sum compensation.

 

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Claiming Workers Compensation / Workcover

 

Who can claim workers compensation?

All workers are entitled claim workers compensation including full time, part time and casual workers. Sub-contractors can still claim compensation, but you’ll need to establish that you were working under the care and control of a “deemed employer”. If you’re a sole trader with an ABN number, then you might need to claim under your own workers compensation insurance policy if you have one.

 
If you’re unsure about how to identify your deemed employer, a specialist workers compensation solicitor will be able to explain where you stand.

 

How do I claim compensation for work-related injury?

To claim compensation, you’ll need to report your injury to your employer and provide a certificate of capacity from your doctor. The employer then has 48 hours to report your injury to their workers compensation insurer. You can also report it directly to the insurer if you like. The insurer will contact you to arrange an assessment of your injuries and then notify you whether it’s accepting liability for your claim. It’s important to note that you don’t have to agree with the insurer’s decision and you should seek legal advice if you have any concerns about it.

 

How long do you have to submit a workers compensation / WorkCover claim?

Workers compensation claims in NSW should be made within six months of the accident or injury. However, there are exceptions where you can exceed this time limit. For example:

  • A claim can be made up to three years after the accident in some situations (eg if you’ve been travelling or you make an honest mistake)
  • If a claim relates to an injury resulting in death or serious and permanent impairment, the claim may still be made after three years, if there’s a reasonable cause for the delay
  • If a period greater than three years has passed since the accident then a claim may still be made with SIRA approval

There are also special arrangements if you become aware of an injury a long time after the accident. In these cases, the time limit for workers compensation claims starts from the time you become aware of your injury and the reasons for it.

 

How long do WorkCover claims take?

After your claim is submitted by your employer, the insurer has 14 days to notify you whether:

  • Your claim is accepted
  • There’s not enough information to make a decision and they need more time
  • Your claim is denied

If your claim is accepted, you should start receiving payments straight away.

 

Do I get full pay if injured at work?

If your claim for workers compensation is accepted by the insurer, you may be eligible for weekly payments up to a maximum of 95% of your average pre-accident weekly earnings. The amount you receive will be reduced depending on your work capacity (ie) the higher your work capacity, the lower the amount you’ll receive.

 
Please refer to the section of this article on how workers compensation / WorkCover payments are calculated for more details.

 

Can I sue for work injury?

If your work injury is the result of negligence on the part of your employer, and you have been assessed as having a whole person impairment (WPI) of at least 15%, you can sue your employer for damages to cover loss of past wages and loss of future earnings capacity. This is a common law damages claim, and under the workers compensation system it’s known as a work injury damages claim. If you’re considering suing for a work injury, you should start by getting advice from a specialist personal injury lawyer.

 

What happens when workers compensation is denied?

If your workers compensation claim is denied, there are options open to you to dispute the decision. The insurer that has denied your claim must notify you in writing of their reasons for the denial, and provide information on the next steps available to you.

Here are some examples of common disputes:

  • The insurer doesn’t consider the person making the claim to be a ‘worker’ (under the legislation)
  • The insurer considers that employment wasn’t the main contributing factor to the injury
  • It wasn’t ‘reasonably necessary’ to have the medical treatment or to incur other expenses claimed

On 1 January 2019, the Workers Compensation Commission (WCC) became the central body for resolving all workers compensation disputes.

If you have a dispute with an insurer, here are some options:

  • Request an internal review by the insurer, who must respond within 14 days
  • Lodge a dispute directly with the WCC
  • Contact a specialist personal injury lawyer who offers free legal advice – it may be possible to get legal representation at no cost to you

 

Do I need a lawyer for workers compensation?

You can claim workers compensation without using a lawyer. However, every workers compensation claim is different, and it can be hard to know if you’re getting everything you’re entitled to. It’s also common for insurers to deny part or all of a compensation claim. An experienced workers compensation lawyer will be able to review your claim and make sure you receive your full entitlements. In particular, if you find yourself in a dispute with an insurer, having a lawyer on your side will give you a much better chance of success.

 
Many law firms will provide you with free advice, and in NSW it’s possible you can get all of your legal costs covered by WIRO (the Workers Compensation Review Office) so that there’s no cost to you.

 

How do workers compensation lawyers get paid?

Most compensation lawyers will apply to WIRO (the Workers Compensation Review Office) for funding on your behalf, and this may cover all of your legal fees. If you’re pursuing legal action (such as a work injury damages claim), most firms will offer to work on a no win no fee basis, so you only need to pay them if you win.

 
NSW legislation stipulates the fees lawyers can charge to assist with your claim. Law firms can’t charge a percentage of your compensation – they must charge an hourly rate, or a fixed fee for each service they provide to you. The firm needs to disclose their cost structure to you in a costs agreement prior to providing you with any legal services.

 

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General Information about Workers Compensation Claims

 

Does workers compensation / WorkCover affect future employment?

Generally, employers are not allowed to discriminate against someone who has made a WorkCover or workers compensation claim. In fact, Federal Fair Work legislation prohibits employers from refusing to hire a worker who has made a claim. However, prospective employers can be hesitant about hiring someone who has a pre-existing condition that may affect their work or increase the employer’s risk of being held liable for an injury. For example, an employer would be well within their rights to refuse to hire a removalist who has a pre-existing back problem. On the other hand, if the removalist had made a full recovery, the employer can’t refuse to hire them.

 

Can you lose your job while on workers compensation / WorkCover?

The NSW Workers Compensation Act essentially prevents employers from terminating an employee who has sustained a work injury of any kind, purely because they’re unfit to resume work within the first six months. During this ‘protected period’, if an employer terminates an injured worker’s employment because they’re not fit for employment as a result of the injury, then the employer may be liable to pay a fine of up to $11,000.

Keeping the worker’s position available for the first six months while they undergo rehabilitation isn’t the only expectation of the employer. The employer needs to be actively involved in the recovery, which includes arranging a treatment plan alongside a WorkCover approved workplace rehabilitation provider. Failure to do this can leave the employer at risk of fines in excess of $11,000.

Even if the employer fulfils its obligations within the first six months and then terminates the worker, the worker still has the right to seek reinstatement of their employment with the Industrial Relations Commission within two years of the dismissal.

 

Can I sue while on workers compensation / WorkCover?

If you’re already receiving workers compensation, you may still be entitled to sue for damages if your injury was the result of your employer’s negligence, and your whole person impairment is greater than 15%. This is a common law claim, referred to as a work injury damages claim, and is for past and future loss of earnings – compensation for wages and superannuation lost because you have been unable to work or are unable to work into the future.

 

How long can you be on workers compensation / WorkCover?

If your level of impairment from your injury is less than 20% WPI (whole person impairment) your payments will stop after five years. If you’re assessed as having a WPI greater than 20%, you’ll continue to receive the lesser of:

  • 80% of your pre-injury average weekly earnings, minus the amount you’re currently earning or have been assessed as able to earn, or
  • The maximum weekly compensation amount minus the amount you’re currently earning or have been assessed as able to earn

 

Find out how much you can claim.
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