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Workplace Compensation Claim Success

At Garling & Co, we have dealt with thousands of Workers Compensation claims over the years. In that time, we've been able to learn all the tricks and secrets that insurance companies use - but that they don’t want injured workers to know about.

Updated June 2022

Insurance companies are large organisations with employees who follow their company’s instructions to the letter and rarely have any independent thought about what is right or wrong.

They will not tell you what you need to know so you can get a suitable amount of compensation for your pain, suffering, medical expenses and lost wages; they’ll only tell you what they want you to know – which is usually as little as possible.

To even up this power imbalance, we’ve put together the 6 main secrets insurers don’t want you to know about or understand. Take a look.

Introduction

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.

Most Compensation Lawyers offer the same things on their website. An initial free consultation, “No Win No Fee” agreements and all saying they are “the best”.

Ensure your Lawyer is an Accredited Specialist. This link will give you more detailed information about Accredited Specialists in Personal Injury law. Read Garling and Co 5 star independent google reviews here.

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.

This includes:

  • 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:

  1. 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;
  2. 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.
  3. 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 due 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.

Your rights

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.

Conclusion

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.

Matthew Garling

About Matthew Garling

Matthew Garling is an Accredited Specialist in Personal Injury Law approved by the Law Society of New South Wales. Matthew is also a member of Australian Lawyers Alliance, a group of lawyers dedicated to fighting injustice from big businesses and insurers.

Matthew specialises in compensation law and has acted for thousands of injured people in work accidents, motor vehicle accidents and negligence cases. Matthew does not act for insurance companies, in fact insurance companies hate Matthew as he knows the inside secrets they use to prevent people from obtaining proper compensation. Over 90% of clients are referred to Matthew by lawyers and doctors. Matthew is recognised in both the medical and legal professions as one of the best personal injury lawyers in New South Wales. Matthew is the author of “How to choose your Compensation Lawyer” , “ 5 ways to ruin your Motor Accidents Claim and “ 6 Workers Compensation insider secrets”. Matthew is a lawyer who surfs and likes to keep fit by chasing his kids around the basketball court. as these professionals know he is one of the best personal injury lawyers in Sydney.

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Kimberly B.
23:14 14 Feb 24
Mathew is very knowledgable and has been of great assistance to me. All the staff are friendly and helpful. I'm so happy I found this firm.Thank you Mathew and team for your great work in my case.... I am 100% happy with what you achieved for me.read more
Julie M.
10:16 16 Jan 24
My last stage of Workers compensation claim was managed by Emma Perkins, Natasha Stojanovic, Rebecca Dunshea and Kelli Robinson at Garling and Co. Lawyers who went the extra mile with their service... from the beginning to the end of 3 years of my case. I have become very anxious with almost everything after a workplace injury and a lot of times I probably ask more questions than I need to, but Emma Perkins always finds clear answers to my questions in a short time and explains to me patiently even using her mealtime or between her meeting and make me feel that I have been very well take care and supported. I am so grateful and extremely satisfied. The excellent service, attitude, and culture of Metthew Garling and his team are second to none with a very high success rate. If you going to battle with your workplace injury for a short or long period, you are better off with Garling and Co. lawyers who are able back you up every step of the way. I strongly recommend it to anybody who needs their service like me. Julieread more
patrick P.
01:46 19 Dec 23
I like to say that I had a very wonderful experience,And the support, and also understanding with all my requests,I could not ask for a better team!Thank you Emma and also her assistant Rebecca... thank youread more
Kazi H.
13:38 13 Dec 23
Work cover fund is GOVT’S money but insurer think that it is from their 14th generation. So only they can have it. Not only that, people from the work, IME doctor from insurer, back to work... coordinator from work, Rehab provider from any side push the worker as hard as possible that the worker (doesn’t matter how the workers mental or psychical condition) either go back to his pre injury duty or leave the job.More over on that very bumpy any difficult journey some of them only treat the worker as a MONEY MAKING MECHINE .in some point worker feels like, no rooms to breath. On that moment need someone to support legally, someone to care, someone to relive.On my case I believe that, somehow, I manage to make my God happy. That’s why God sends me to Matthew Gerling and his team Allison, Rebecca and Nathan, and all of GARLING & co Lawyers.I am not good enough in English, can’t express my gratitude.Matthew, Allison, Rebecca and Nathan, please accept my appreciation and pass it to others.read more
Carol L.
01:32 29 Nov 23
Professional, understanding and friendly
Sean G.
23:21 14 Nov 23
Matthew Garling and everyone I spoke to at Garling and Co were kind, caring and compassionate. They were sensitive to my psychological condition and were patient in explaining everything to me, so... that I clearly understood the legal process. I am exceptionally grateful for the settlement outcome that Garling and Co obtained for me. Many thanks.read more
waqas A.
08:33 13 Nov 23
Great Experience with Garling & Co. Matthew explained everything in detail during the first appointment. Allison, Nathan, Rebecca and the staff have been extremely helpful. Thank You to the team and... lawyers at Garling & Co. for making the long process easy for me and getting an excellent outcome for my compensation claim.I would highly recommend Garling & Co. Lawyersread more
Saskia L.
21:42 08 Nov 23
The world of workers compensation is long, hard and confusing, but Emma and Rebecca at Garling & Co always treated my case with kindness, respect and understanding. No question was ever silly and... they always had time to make sure I knew what would happen next and how we could best prepare. I am so thankful for their expertise and could not have chosen anyone better to represent me.read more
Antonio P.
08:46 06 Nov 23
Thank you Matthew and his team for taking care of my case couldn’t ask for a better results and couldn’t have better team to do that thank you
Julie M.
00:40 06 Nov 23
Garlic & Co Lawyers have been wonderful, supporting me through some difficult times. With their assistance, positive outcomes were achieved. Many thanks to the Team.Julie
University of Technology, Sydney
Member of Law Society of New South Wales
Law Society of NSW Specialist Accreditation
University of Sydney
Legal Profession Admission Board of New South Wales
The law society of nsw professional standards scheme logo.
University of Technology, Sydney
Member of Law Society of New South Wales
Law Society of NSW Specialist Accreditation
University of Sydney
Legal Profession Admission Board of New South Wales
The law society of nsw professional standards scheme logo.
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