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 taking the time and effort of 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 websites….. A free consultation, no win no free agreements and all say that they are “the best”. For most people there is really no way to tell which lawyer or website is “the best”. You may ask a friend, but their recommendation may not work out. The only way to make sure for yourself that the lawyer you hire knows what they are talking about is to ensure they are an Accredited Specialist in Personal Injury Law. This link will take you to more detailed information 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 workers 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 WorkCover Certificate of Capacity that certifies you unfit or partially unfit for work
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 WorkCover Certificate of Capacity.
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 if it notifies you in writing that they have a ‘reasonable excuse’ not to commence provisional liability payments. A ‘reasonable excuse’ may include the following;
- Insufficient medical information
- 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 make a decision as to 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 WorkCover Certificate of Capacity and simply ignore it and make no decision in respect of 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 WorkCover. Once provisional liability payments commence the insurance company is then able to investigate the claim to determine whether or not 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:
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 as a result 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 employment that is suitable, and as far as it is available a similar or equivalent nature of work that 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 to WIRO on 13 94 76 or wiro.nsw.gov.au
The employer does not have to provide suitable work is if the employer is a small employer and they do not have any suitable or light positions available that can be undertaken.
3. Workers Compensation insurers are known as Scheme Agents and they are responsible to SIRA the State Insurance Regulatory Authority.
SIRA is responsible for the functioning of the workers compensation system in NSW.
SIRA is responsible for underwriting and collecting all workers compensation premiums from employers and is the body responsible for payment of 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 merely handle the claim on behalf of WorkCover.
Any compensation payable to you is actually paid by SIRA (although the payment you receive will look like it is coming directly from the scheme agent).
SIRA has also created the Workers Compensation Review Office known as WIRO.
WIRO assists injured workers navigate the complex workers compensation scheme. Any queries about your rights and any complaint about the insurers can be addressed 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 during the course of your employment then you may be entitled to lump sum compensation. A permanent injury is one which has resulted in an impairment which is unlikely to change within the next 12 months.
Workers compensation insurers rarely inform injured workers of their right to make a claim 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 the WorkCover Authority) assesses your percentage of Whole Person Impairment.
You must obtain an assessment of greater than 10% whole person impairment to be eligible to be able to obtain compensation for permanent impairment.
The maximum amount payable is 75% and over which is $220,000.
Usually a lump sum payable is between $30,000 and $60,000 although can be higher if you have a significant injury.
To make a claim for lump sum compensation for permanent impairment you will need to contact a lawyer who is an accredited specialist in personal injury law.
5. You have an entitlement to claim damages against your employer if your injury was sustained as a result of your employer’s negligence.
The workers compensation insurer will never tell you that you have a right to sue your employer if your injury was sustained as a result of the negligence of your employer.
The workers compensation scheme is generally a ‘no fault’ scheme, where you are entitled to payments of weekly compensation, medical expenses and lump sum compensation. If you have sustained an injury in the course of your employment you do not need to prove that your employer was negligent.
However, there is a part of the Workers Compensation Act which allows for 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 be able to 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 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 then 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 are normally payable for things such as pain and suffering, past and future medical expenses, past and future loss of income and past and future care and assistance.
The workers compensation legislation has modified these damages and employees are only entitled to claim against their employer for loss of past and future income only. This may still be a substantial amount of compensation and most claims are worth in the range of $200,000 – $500,000.
If you do decide to proceed with a claim for work injury damages and are successful, then 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 full 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 as a result of the negligence of your employer, 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 what your rights and entitlement are under the act. The workers compensation insurer claims officers are often wrong about what your rights and entitlement are, 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 extremely complex. That limited 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 who is 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 the majority of workers compensation claims all legal costs are covered by WIRO. You will never have to pay any legal costs for having a lawyer assist you in your workers compensation claim.
There is no reason therefore 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 certain whether your lawyer is an expert in workers compensation is to make sure they are accredited as a personal injury specialist by the Law Society of NSW.
We hope this has helped you to better understand your rights and entitlements under the Workers Compensation Act.