You need to fight back by arming yourself with all the knowledge you can about your rights and entitlements under the Workers compensation legislation.
This guide will help you understand your rights and entitlements under the Workers Compensation legislation when making work injury claims, including work injury damages claims.
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Choosing the right Lawyer to represent you in your claim is critical to the success of your Workers Compensation or Work Injury Damages claim
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.
To make a claim:
- Notify your employer that you have sustained an injury while working. This can be due to an accident or any other reason you suffered a work-related injury.
- Providing to your employer a SIRA Certificate of Capacity(State Insurance Regulatory Authority) that certifies you unfit or partially unfit. SIRA is responsible for Workers Compensation in NSW and has taken over the roles and responsibilities of Workcover.
They must notify the Workers Compensation Insurer within 48 hours that a claim for a work-related injury or accident has been made and provide a copy of the SIRA Workers Compensation Certificate of Capacity (previously Workcover).
Once notified of the injured worker, payments are required within 7 days.
- Weekly compensation up to a maximum of 12 weeks
- Treatment costs of up to $7500 paid
They do not have to commence payment within 7 days if 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 person is not an employee
- The injured worker refuses to release information
- 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, they have a further 21 days to decide whether they will accept or decline your work injury claim.
As Workplace Injury Lawyers at Garling and Co, we regularly find that insurers are notified of work-related injuries and receive a SIRA Workers Compensation Certificate of Capacity (previously Workcover) and ignore it and make no decision regarding liability.
They refuse to commence any weekly compensation payments for your work-related injury or illness and refuse to pay treatment-related costs. They then 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 they 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 a lawyer who specialises in compensation for legal advice
- Contact the WIRO and ask for 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.
Section 49 of the Workplace Injury Management Act 1998 (NSW) outlines that an employer must provide suitable work to an injured employee.
Suppose because of a workplace injury, you are partially unfit for work and can return to work on either a part-time or full-time basis but have restrictions on the nature of the duties you can perform. In that case, you must be provided with suitable job tasks when requested.
An employer must provide suitable tasks, and if available, similar, or equivalent nature of duties to what was being performed at the time of the accident. You do not have to perform suitable duties that are demeaning or do not provide any real benefit to the organisation.
Failing to provide such suitable duties can result in fines of up to $10,000.
Our experience is that employers often refuse to provide suitable employment, despite such work being readily available. If you are not offered appropriate 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 business and do not have appropriate or light work positions.
3. Workers Compensation Insurers are known as Scheme Agents, and they are responsible to the State Insurance Regulatory Authority – SIRA
SIRA is responsible for functioning the worker’s compensation system in NSW, which was previously the Workcover Authority of NSW.
SIRA is responsible for underwriting and collecting all workers’ compensation premiums from employers and paying all 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. SIRA is responsible for iCare. SIRA was previously known as Workcover.
Any compensation payable to you is 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 workers navigate the complex compensation scheme for work injuries and work injury damages. Further information regarding your rights or any complaints about the insurers should be directed to WIRO.
If you believe the scheme agent is not complying with their obligations, you should call 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 its obligations under the Act.
4. If you have sustained a permanent workplace injury, you may be eligible for thousands of $$ in Lump Sum compensation.
If you have sustained a permanent workplace injury while employed, you may be entitled to lump-sum work injury compensation. A permanent injury is an impairment that is unlikely to change within the next 12 months.
Compensation insurers rarely inform those claiming their right to lump-sum compensation for permanent impairment.
The amount of lump-sum workers compensation you receive for permanent impairment is in addition to your rights to claim weekly benefits of compensation and medical costs for your work injury.
If you obtain a lump sum for permanent impairment, your weekly payments and treatment 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.
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 payment for permanent impairment, you will need to contact a lawyer who is an accredited specialist in personal injury law.
Suppose your permanent impairment is agreed with the insurer or assessed as at least 15% or more. In that case, you may be able to make an additional claim for Work Injury Damages – see more information below.
5. You have an entitlement to claim work injury damages if your workplace injury was because of your employer’s negligence. This is known as a Work Injury Damages claim.
The insurer will never tell you that you have a right to sue your employer to claim work injury damages if your workplace injury was sustained because of your employer’s negligence.
The scheme is generally a ‘no fault’ scheme, where you are entitled to weekly compensation, medical expenses, and lump-sum payments. If you have sustained an injury while working, you do not need to prove negligence.
However, a part of the Act allows for damages, and you can sue your employer if they were negligent and receive modified Common Law Damages.
Damages is simply a legal term for monetary compensation. A damages claim 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 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 are entitled to seek lump-sum payments in the form of work injury damages.
Work injury damages are payable as a one-off lump sum amount.
A work injury damages claim at common law is generally payable for pain and suffering, past and future medical expenses, loss of income, care and assistance, and such things.
The damages legislation has modified these work injury damages and employees can only claim past and future income loss.
This may still be a substantial amount of compensation, and most work injury damages claims are worth in the range of $200,000 – $500,000.
If you decide to proceed with a damages claim for work injury damages and are successful, you are no longer entitled to any compensation benefits. Any weekly benefits or treatment expenses you are receiving will stop. A work injury damages claim is a complete and final settlement of all your rights and what you are entitled to under the Workers Compensation Act.
A work injury damages claim must be brought within 3 years of the date of your injury.
If you believe your injury is because of your employer’s negligence. You should immediately discuss work injury damages claim with a lawyer who is An Accredited Specialist.
A work injury damages settlement is financial compensation for the injury you received dur to your employer’s negligence. When you receive this payment, you will no longer receive any weekly payments.
6. The insurance company does not want you to get legal advice to assist you in making a work injury claim or a claim for work injury damages.
The last thing that workers compensation insurers want you to do is get legal advice from a specialist workers compensation lawyer. They would prefer if you believed everything they had to say about your rights and entitlement under the Act. The workers’ compensation 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 work injury lawyer about your claim, an Accredited Specialist, to ensure you understand your rights under the legislation.
Work Injury Lawyers, who are Accredited Specialists, 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 worker’s compensation claim.
Not all lawyers, however, are the same. The only way to be sure whether your Lawyer is an expert in workers compensation is to make sure they are Accredited Specialist by the Law Society of NSW.
We hope this guide has helped you to better understand your rights and entitlements, including those to claim work injury damages.
We also suggest you download our guide “How To Choose a Compensation Lawyer” where we explain “No Win No Fee” cost agreements and what you should look for in a lawyer who is an Accredited Specialist in Personal Injury Law.