Suffering an injury at work can be a frightening experience. Navigating through the process of filing claims for financial and medical support may seem daunting, particularly when faced with an immediate loss of income and mounting medical expenses. In addition, the NSW government introduced significant changes in 2012 to workers compensation, reducing certain rights and entitlements. Employees can reduce the stress and anxiety associated with a workplace related injury when they are armed with even an elemental understanding of the process.
The Australian Bureau of Statistics estimates that over 600,000 workers suffer a work-related injury each year, although many do not seek compensation or report claims as the injuries are relatively minor. Workers compensation is a no-fault statutory based system which provides compensation and benefits to employees who suffer an injury, illness or disease arising from their workplace. It is valuable protection for both the worker and the employer.
Employers are required by law to have workers compensation insurance, and responsibilities arise on all parties to provide the necessary benefits and assistance to the employee. It is important to remember that the principal goal of the system is to ensure the employees’ injury or illness is managed properly, in order to allow for a speedy recovery and a safe return to work.
In New South Wales, “Work Cover” administers the compensation system for work sustained illness, disease or injury, and for government employees it is called “ComCare.” Workers covered by the compensation system include employees, trainees, volunteers, apprentices, contractor and sub-contractors. Workers are covered from the time they leave for work until they return home, although there are some recent restrictions for “journey” injuries to/from work. Generally once an injury occurs there are certain steps that must be followed before any entitlements are paid to the worker.
What to do once injury occurs
As a starting point, it is important to keep copies of all documentation regarding a work related injury or illness. Once this occurs, a claim must be submitted by the worker in order to receive workers compensation. (A claim must be made within six months from the date of injury).
To begin the process, notification must be made to the employer by the worker or their representative. Notification can be made either in writing or verbally, however the employer must log the incident in their register of injuries and notify their insurer or scheme agent within 48 hours of becoming aware of the injury.
The worker is required to obtain a Work Cover certificate of capacity from their doctor and provide this, along with all medical treatment receipts, to the employer. The certificate of capacity assists the insurer in determining the worker’s capacity to continue work in full or in part. The employer’s insurer or scheme agent will then contact the worker, the employer, and possibly the treating doctor.
However, generally the primary concern of the worker is not simply payment of their medical expenses, but continuing receipt of their income and other entitlements.
There are various categories of entitlements which an injured worker may be entitled to claim:
“Make up pay”, if upon returning to work on partial duties there is a difference between the worker’s gross weekly wages before the injury and the actual weekly earning after the worker’s injury.
Lump sum payments for permanent impairment (and pain and suffering where applicable).
Medical expenses, including ambulance services, hospital treatment, and rehabilitation.
Travel expenses in order to attend appointments for medical treatment.
Vocational training and work aids.
Funeral expenses and death benefits in the event the injury results in the worker’s death.
Legal assistance in relation to pursuing a claim.
Provisional liability payments
The first compensation an injured worker generally receives is provisional liability payments. These payments generally commence within seven days of the employer’s notification to its insurer or scheme agent, however workers should be aware that there can be a delay. The insurer or scheme agent can cite a “reasonable excuse” for failing to commence these payments, such as the lack of sufficient medical information, the worker cannot be contacted, the injury is not significant or work related, or if there is a refusal to release information.
Provisional liability payments include both medical expenses and weekly benefits (which represent the worker’s income or wages). Medical expenses are paid for a maximum of 12 weeks up to $7,500, and weekly payments can also continue for a maximum of 12 weeks.
The payments comprise the worker’s weekly wage, which is 100% of the worker’s remuneration for one week (excluding overtime, penalty rates and special expenses) if there is an operable award or enterprise agreement. For those without an award or enterprise agreement, they will receive 80% of their average weekly earnings, including overtime.
In the event a worker is completely unfit for work (totally incapacitated), the weekly payments continue for 26 weeks at the award or enterprise rate of pay capped at a maximum weekly amount (excluding overtime, penalty rates and payments for special expenses). Casual workers are paid based upon an average of the last 12 month’s pay, even if they work more than one job.
Recent changes to Workers Compensation
Several important changes to a worker’s rights and entitlements were implemented in June 2012. They have been the source of great study and debate for their impact on both existing and new claims. However, police officers, fire fighters, paramedics and coal miners are exempt from these changes.
“Journey” claims for an injury received after 19 June 2012 can only be made if there is a real or substantial connection between the employment and the incident which gave rise to the injury.
Heart attacks and stroke injuries are no longer covered unless the nature of the employment gave rise to a significantly greater risk of the worker suffering the injury than if the worker not been employed in a job of that nature.
Payments for pain and suffering are no longer available.
There are limitations regarding payment of reasonably necessary medical and related expenses for up to 12 months after cessation of weekly payments.
Weekly payment calculations are now based more closely on earnings prior to injury (including overtime and shift allowance in the initial 52 weeks of weekly payments).
Dependents are no longer included in calculating entitlement to weekly payments.
Claims for nervous shock by the worker and their relatives are not considered work injuries where the shock is not a work injury (excluding claims commenced prior to 19 June 2012).
There is now a threshold of more than 10% impairment for physical injury in order to access a permanent impairment lump sum.
If you have suffered a work injury, the most important thing to do is consult an expert. They will be able to help you navigate the legal jargon around Work Cover, and ensure that you are fairly compensated for any expenses that you accrue due to your injury.