You need to fight back by arming yourself with all the knowledge you can about your rights and entitlements under the Workers compensation legislation.
Congratulations, by reading this guide, you have separated yourself from all those other injured claimants who will make the critical and costly choice of not understanding their rights and entitlements under the Workers Compensation legislation.
It is also most important that you choose the right Lawyer to represent you in your claim.
The internet has allowed lots of hype and grand claims to be made about Workers Compensation Lawyers. Most Compensation Lawyers offer the same things on their website. A free consultation, “No Win No Fee” agreements and all say that they are “the best”. There is really no way to tell which Lawyer or website is “the best” for most people. You may ask a friend, but their recommendation may not work out. The only way to make sure for yourself is to ensure the Lawyer is an Accredited Specialist in Personal Injury Law. This link will take you to more detailed information about Accredited Specialists in Personal Injury law.
You have one chance to get the right Lawyer for your claim, and it’s the most important decision you will make.
1. When you make a worker’s compensation claim, the worker’s compensation insurer must commence weekly benefits and medical expenses within 7 days
Section 275 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) requires the Insurer to commence provisional payments of weekly compensation within 7 days after the claim has been made.
A claim is made by:
- Notifying your employer that you have sustained an injury in the course of your employment
- Providing to your employer a SIRA Certificate of Capacity (State Insurance Regulatory Authority) that certifies you unfit or partially unfit for work. SIRA has taken over the roles and responsibilities of the previous government organisation responsible for Workers Compensation in NSW, known as “Workcover
The employer must notify the Workers Compensation Insurer within 48 hours that a claim for workers compensation has been made and provide a copy of the SIRA Certificate of Capacity (previously Workcover).
Once the Insurer is notified, it is required to commence payments within 7 days.
These payments include:
- Weekly compensation up to a maximum of 12 weeks
- Medical expenses of up to $7500
The Insurer does not have to commence payment within 7 days they notify you, in writing, that they have a ‘reasonable excuse’ not to start provisional liability payments. A ‘reasonable excuse’ may include the following:
- Insufficient medical information
- The injured person is not an employee
- The worker refuses to release information about the injury
- The injury is not work-related
- The injury was notified two months or more after it occurred
If a reasonable excuse notice is provided in writing, the Insurer then has a further 21 days to decide whether they will accept or decline the claim.
In our day-to-day practice at Garling and Co, we regularly find that insurers are notified of injuries and receive a SIRA Certificate of Capacity (previously Workcover) and ignore it and make no decision regarding liability.
They refuse to commence any payments of weekly compensation and refuse to pay medical expenses. They often start to investigate the claim and arrange a medical examination.
The legislation is clear, the insurance company must commence provisional liability payments within 7 days, failure to do so is an offence under the act, and the Insurer can be fined by SIRA (previously Workcover). Once provisional liability payments commence, the insurance company can investigate the claim to determine whether they should continue to accept liability.
If the insurance company fails to commence provisional liability payments within 7 days as required, then you have two options:
- Contact Garling & Co Lawyers, who specialises a lawyer who specialises in compensation
- Contact the WIRO and ask for an assistance officer on 13 94 76 or wiro.nsw.gov.au
2. An employer must provide you with suitable work when you are fit to return to work.
Section 49 of the Workplace Injury Management Workers Compensation Act 1998 (NSW) outlines the requirement that an employer must provide suitable work to an injured employee.
If because of an injury a worker is partially unfit for work and can return to work on either a part-time or full-time basis but has restrictions as to the nature of the duties, they can perform the employer must at the request of the worker provide suitable employment for the worker.
An employer must provide suitable employment, and if available, a similar or equivalent nature of work to what was being performed at the time of the accident. A worker does not have to perform suitable duties which are demeaning or do not provide any real benefit to the employer.
If an employer fails to provide such suitable duties, they can be fined up to $10,000.
Our experience is that employers often refuse to provide suitable employment, despite such work being readily available. If your employer refuses to offer you suitable work, you should make a complaint to the Insurer and WIRO on 13 94 76 or wiro.nsw.gov.au
The employer does not have to provide suitable work if they are a small employer and do not have any suitable or light positions available.
3. Workers Compensation Insurers are known as Scheme Agents, and they are responsible to the State Insurance Regulatory Authority – SIRA
SIRA is responsible for the functioning of the worker’s compensation system in NSW.
SIRA is responsible for underwriting and collecting all workers compensation premiums from employers and is responsible for paying all workers compensation benefits.
SIRA appoints scheme agents (usually insurance companies such as QBE, Employers Mutual, GIO, Allianz etc) to act as claims handling agents on their behalf. These scheme agents work on behalf of iCare (the government workers compensation insurer). SIRA is responsible for iCare. SIRA was previously known as Workcover.
Any compensation payable to you is actually paid by SIRA (although the payment you receive will look like it comes directly from the scheme agent).
SIRA has also created the Workers Compensation Review Office known as WIRO.WIRO assists injured workers navigate the complex worker’s compensation scheme. Further information regarding your rights or any complaints about the insurers should be directed to WIRO.
If you believe the scheme agent (insurer) is not complying with their obligations, you should call the WIRO on 13 94 76 or wiro.nsw.gov.au and lodge a complaint. WIRO will investigate your complaint and recommend the insurer comply with their obligations under the Act.
4. If you have sustained a permanent injury, then you may be entitled to thousands of $$ in Lump Sum compensation.
If you have sustained a permanent injury while employed, then you may be entitled to lump-sum compensation. A permanent injury is an impairment that is unlikely to change within the next 12 months.
Workers compensation insurers rarely inform injured workers of their right to claim a lump sum for permanent impairment.
The amount of lump-sum compensation you receive for permanent impairment is in addition to your rights to claim weekly benefits of compensation and medical expenses.
If you obtain a lump sum amount for permanent impairment, your weekly payments and medical expenses do not stop.
To determine if you are entitled to receive a lump sum amount of compensation for permanent impairment, you must be assessed by an independent medical examiner that (using guidelines established by Workcover, now SIRA) assesses your percentage of Whole Person Impairment.
This claim is made through the Personal Injury Commission of NSW (previously known as the Workers Compensation Commission)
You must obtain an assessment of greater than 10% whole person impairment and equal to or greater than 15% for psychological injuries to be eligible to receive compensation for permanent impairment.
Usually, a lump sum payable is between $30,000 and $60,000, although it can be higher if you have a significant injury.
To claim lump-sum compensation for permanent impairment, you will need to contact a lawyer who is an accredited specialist in personal injury law.
If your permanent impairment is agreed with the insurer or assessed as at least of 15% or more then you may be able to make an additional claim for Work Injury Damages – see more information below.
5. You have an entitlement to claim damages against your employer if your injury was because of your employer’s negligence. This is known as a Work Injury Damages claim.
The workers compensation insurer will never tell you that you have a right to sue your employer if your injury was sustained because of your employer’s negligence.
The workers compensation scheme is generally a ‘no fault’ scheme, where you are entitled to weekly compensation, medical expenses, and lump-sum compensation payments if you have sustained an injury while working, you do not need to prove that your employer was negligent.
However, a part of the Workers Compensation Act allows you to sue your Insurer if they were negligent and receive modified Common Law Damages.
Common-Law Damages is simply a legal term for monetary compensation. A claim against your employer for modified Common Law Damages is known as a Work Injury Damages claim.
To make a Work Injury Damages claim, you must establish the following:
- You must have a permanent impairment equal to or greater than 15% whole person impairment assessed by an independent doctor appointed by the Personal Injury Commission (previously known as the Workers Compensation Commission) or as agreed with the Insurer and;
- 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.
- If you can establish both, you have an entitlement to seek lump-sum compensation in the form of damages.
Damages are payable as a one-off lump sum amount.
Damages at common law are generally payable for pain and suffering, past and future medical expenses, past and future loss of income and past and future care and assistance and such things.
The workers compensation legislation has modified these damages, and employees can only claim damages against their employer for loss of past and future income.
This may still be a substantial amount of compensation and most claims are worth in the range of $200,000 – $500,000.
If you decide to proceed with a claim for work injury damages and are successful, you are no longer entitled to any workers compensation benefits. Any weekly benefits or medical expenses you are receiving will stop. A work injury damages claim is a complete and final settlement of all your rights and entitlements under the Workers Compensation Act.
A claim for work injury damages must be brought within 3 years of the date of your injury.
If you believe you have sustained an injury because of your employer’s negligence, then you should discuss this immediately with a lawyer who is An Accredited Specialist in Personal Injury Law.
6. The insurance company does not want you to get a lawyer to assist you in your claim
The last thing that workers compensation insurers want you to do is to see a lawyer. They would prefer if you believed everything they had to say about your rights and entitlement under the act. The workers compensation insurer claims officers are often wrong about your rights and entitlements, and they will rarely tell you about your entitlement to lump sum compensation or work injury damages.
Claims officers undergo limited training in the Workers Compensation Scheme, which is highly complex. That little training and the complexity of the system means they don’t fully understand your rights under the Act and often do not apply the Act correctly and make mistakes about your entitlements.
At the very least, you should always speak to a lawyer about your claim, an Accredited Specialist in Personal Injury Law.
Lawyers who are Accredited Specialists in Personal Injury Law will not charge you for an initial consultation, and for most workers compensation claims, all legal costs are paid by WIRO. You will never have to pay any legal costs for having a lawyer assist you in your workers compensation claim.
Therefore, there is no reason not to talk to a lawyer about your workers compensation claim so you can make sure you understand your rights under the legislation.
Not all lawyers, however, are the same. Some lawyers will tell you they know all about the Workers Compensation Scheme when they probably know very little. The only way to be sure whether your Lawyer is an expert in workers compensation is to make sure they are An Accredited Specialist in Personal Injury Law, by the Law Society of NSW.
We hope this has helped you to better understand your rights and entitlements under the Workers Compensation Act.
If you have a claim and would like to speak to a lawyer, contact Garling & Co Lawyers today to discuss the compensation you are entitled to.