Know Your Rights : Workers compensation in New South Wales

19-Jul-2019


 

In June 2012, the NSW Government passed several amendments to the Workers Compensation Act 1987 (“the Act”). Cumulatively, the 2012 amendments, several court decisions, an amending Workers Compensation Act (2015) and a Workers Compensation Regulation (2016) and other cases subsequently passed in the Workers Compensation Commission – make up the collective rules when applying the law to workers compensation. The previous right to Section 67 ‘pain and suffering’ has now been abolished. Further, you can no longer claim an unlimited number of ‘top ups’ in relation to Section 66. When a workplace injury deteriorates over time – an injured worker can now only claim ‘one further or final claim’ to lump sum compensation.

There are also significant impediments for an injured worker to claim workers compensation when injured during their journey(s) between work and home.

To summarise the residual rights under the present NSW workers compensation scheme - post amendments, an injured worker can claim:

  • Weekly Benefits (section 40 of the Act)
  • The right to a reimbursement of medical expenses (section 60 of the Act)
  • Lump sum entitlements (Section 66 of the Act)
  • Domestic care and assistance
  • Common law / work injury damages where an injured worker can demonstrate an assessment of 15% whole person impairment.

Please note that the below changes do not apply to:

  • Police Officers, Paramedics and Fire Fighters
  • Workers injured while working in or around a coal mine
  • Bush fire fighters and Emergency Service volunteers (Rural Fire Service, Surf Life Savers, SES volunteers)
  • People with a dust disease claim under the Workers Compensation (Dust Diseases) Act 1942.

What constitutes a workplace injury?

The threshold question when determining whether a claim for workers compensation will be accepted surrounds Section 4 of the Act, which requires that the injured worker has sustained an ‘injury arising out of or in the course of [their] employment’. This injury includes any ‘disease injury’ which includes a:

‘disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease,’ and

‘the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and

‘does not include (except in the case of a worker employed in or about a mine) a dust disease, as is defined in the Workers' Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.’

It therefore follows pursuant to Section 9 of the Act, that acceptance of liability for injuries received by a worker (and, in the case of the death of the worker, their dependents) will result in compensation to the worker in accordance with the Act. It also follows by virtue of Section 9 of the Act that compensation is payable whether the injury was received by the worker ‘at or away’ from the worker's place of employment- including in some instances where an injured worker is travelling to or from work and home, on a case by case basis, generally compensation only being payable where there is a ‘real and substantial connection’ between the injured workers employment and the accident or incident which resulted in the injury.

How to make a claim for workers compensation

The employer has obligations to record a workplace injury in the register of injuries and notify their current insurer. Similarly, an injured worker should notify the employer of an injury as soon as possible after the injury. Often the reporting of injuries does not occur immediately, depending on the circumstances of the injury. There are exceptions to the rule, however the recommended timeframe to lodge a claim for workers compensation is within six months of sustaining a workplace injury. In litigated workers compensation matters, an Arbitrator will consider all ‘contemporaneous medical evidence’ supporting a workplace injury. As such, if any injured worker is unsure as to whether or not the injury is ‘work related’ or generally unsure as to whether they wish to pursue their workers compensation rights it is still advisable that they record all complaints of their medical condition to their general practitioner or specialist and of course, seek union or legal advice at their earliest opportunity.

An injured worker can now report their injury through a central system managed by ICARE by either reporting their injury by calling 137 722 and/or emailing newpiclaims@icare.nsw.gov.au. Engaging in this process, will preserve an injured worker’s rights to workers compensation, as a claim number will be issued for future reference.

A ‘WorkCover Certificate of Capacity’ from the injured worker’s Nominated Treating Doctor or Specialist will be required specifying capacity for work, the nature of the workplace injury (e.g. right shoulder pain), as well as the duration that the injured worker will be off work as a result of the workplace injury.

It is crucial that an injured worker engage in this manner of reporting, even when injuries appear to be minor. An injured worker’s rights to claim workers compensation are retained until their pension age.

Determining a Claim: Weekly Entitlements and Medical Expenses

The Insurer has an obligation to process a claim for workers compensation and determine liability for a workplace injury within a specific timeframe (usually a maximum of two months). It is common practice, for workplace injuries to be accepted on a ‘provisional liability basis’ for a period of 12 weeks with weekly payments commencing immediately, while the insurer investigates the validity of the claim.

If a claim is accepted, weekly benefits are paid in accordance with a formula called “PIAWE” which stands for ‘Pre-Injury Average Weekly Earnings’. PIAWE is paid at a rate of 95% of an injured workers ordinary weekly earnings including overtime for the first 12 weeks and then at a reduced rate of 80% of an injured workers ordinary weekly earnings including overtime thereafter. There are a number of eligibility requirements to remain on weekly entitlements, however in short, weekly entitlements are separated by three ‘entitlement periods’: between 0-130 weeks and 130-260 weeks and beyond 260 weeks.

The entitlement to weekly compensation very much hinges on an injured worker’s capacity to work in accordance with the supporting medical evidence together with their assessment of permanent impairment. However, the legislation is subject to interpretation, with ‘loopholes’ that allow an injured worker to claim an extension of their rights to weekly entitlements and / or medical expenses beyond their entitlement period. Usually an injured worker would need to demonstrate that they have not reached a period of stability (i.e. maximum medical improvement “MMI”) or require extensive treatment or further/future surgery as referenced by medical opinion.

The right to medical reimbursement is closely correlated to the right to weekly compensation, again with the rules revolving around which entitlement period is applicable to a specific injured worker. The general rule that dictates whether medical treatment will be funded by an insurer is whether the treatment is ‘reasonable and necessary’. However, there are an array of exceptions to these rules, again - for those who require surgery- or who can demonstrate a condition which is not yet stable.

If a claim is declined, then the Insurer is obliged to issue a Section 78 notice with all supporting evidence attached to the notice. These notices can be reviewed and/or disputed in the Workers Compensation Commission for which legal representation is required.

WIRO

The Workers Compensation Independent Review Office (“WIRO”) will assist injured workers with their complaints about insurers and their conduct and resolve those complaints where possible within seven working days. The WIRO can be contacted on their website www.wiro.nsw.gov.au or on their hotline 13 9476. An approved legal service provider (“ALSP”) may obtain a legal grant of funding for an injured worker to fund all their professional fees payable to a lawyer or barrister, as well as all disbursements incurred in the running of a worker’s compensation matter. As such, access to justice is not limited to injured workers in NSW who have sustained an injury and want to challenge a decision of an insurer.

If you require assistance with a worker’s compensation matter, please contact the Union (allocation@asmof.org.au) and we can refer you to the workers compensation team at Hall Payne Lawyers for a complimentary assessment of your entitlements.

Please note the information contained in this article is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances.


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