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Questions & Answers for Workers Compensation Claims in NSW

Q –

I am aware that there have been changes to the Workers Compensation Laws but will I still be able to make a lump sum claim because of my injury?

A –

Lump Sum Claims are still available for injured workers in certain circumstances and that is, if it is determined that you have an impairment of at least 11% Whole Person Impairment (WPI).

Therefore if you are determined as having an impairment of at least 11% WPI, you would be entitled to a lump sum payment.

Unfortunately, lump sum entitlements for pain and suffering has been abolished.

Q –

I sustained my injury because of my Employer’s negligence and I want to sue them for negligence. What do I have to do to sue my Employer?

A –

In order to sue your Employer for negligence, it needs to be shown that the injury was caused as a result of the Employer’s negligence.

Aside from establishing negligence, you need to satisfy a threshold of 15% Whole Person Impairment in order to commence proceedings against the Employer.

If the impairment is below 15% Whole Person Impairment, you would not be permitted to commence a Common Law negligent claim.

Q –

What do I have to do to reach the threshold of 11% Whole Person Impairment and the threshold of 15% Whole Person Impairment?

A –

You do not have to do anything to reach that threshold, as the injury speaks for itself.

If the injury is significant enough to achieve the required threshold, then the threshold requirements will be reached.

However, there are certain elements which affect impairment levels so that the impairment percentage could be at its maximum. These elements include the following:

  • Secondary injuries are also assessed and will increase impairment levels. For instance, if you injured your right knee and as a result of over-bearing on the left side, you then develop similar symptoms to the left knee. In this situation both knees will be assessed to determine your impairment, not just the injured right knee.
  • Certain medical procedures, in particularly surgery, can influence impairment levels. For instance, spinal fusion, a hip replacement or a knee replacement will raise the category of the impairment.
Q –

I heard on the news that somebody slipped in the supermarket and got a large sum of money. I have the same injury, so will I be able to receive the same amount?

A –

In circumstances where a person has slipped in a Supermarket, their claim usually comes under a different law to Workers compensation. It would generally involve a Public Liability claim which is against the Supermarket.

These are not Workers Compensation claims and compensation entitlements and amounts do differ. The laws applied are different which will influence the amount of compensation that can be claimed against the insurer.

Further in a Public Liability claim, compensation is in the form of one (1) lump sum amount. In Workers Compensation medical expenses are paid progressively as the expense occurs. Loss of wages is paid in the form of weekly compensation which is made periodically, either weekly or even fortnightly.

The only thing that is paid in the form of a lump sum in Workers Compensation is the lump sum claim for impairment.

Q –

I have a very similar injury to somebody else who has a Workers Compensation claim and he has received a large sum of money. I should be entitled to the same amount, shouldn’t I?

A –

It is very possible that you will receive a similar amount in compensation to another who has a similar injury to yours.

However, there are many factors that can influence different amounts in compensation and that includes but is not limited to the following:

  • The level of pre-injury earnings will determine the rate of weekly compensation. Obviously a higher wage earner will attract higher amounts of weekly compensation.
  • Date of the injury can influence overall compensation amounts payable to each injured worker. The law has evolved considerably over the last 12 years. There has been many changes to Workers Compensation and the amount of compensation that can be claimed has also changed.
  • Deductions apply in certain circumstances for an injured worker who has a pre-existing injury or condition.
Q –

Can I make a claim for further deterioration, despite the law changes?

A –

You can make a claim for further deterioration if your previous claim/claims for lump sum benefits were finalised prior to 19 June 2012.

In this instance, you would be entitled to make a further deterioration claim, but you are only allowed to make one (1) further deterioration claim. You can no longer make multiple claims for further deterioration.

If you finalised a lump sum benefit claim for your impairment after 19 June 2012, you would not be entitled to make a further deterioration claim.

Q –

The Insurer have suspended my pay because I did not attend one of their medical appointments. Can they do that?   What should I do?

A –

This happens regularly when an injured worker fails to attend a medical appointment organised by the Insurer.

A worker has an obligation to attend medical appointments organised by the Insurer and failure to do so can result in suspension of payments.

If there was a good reason for non – attendance then it should be explained to the Insurer. This does not mean that payments will automatically recommence. However, the Insurer may take this into consideration and may recommence your payments.

A medical certificate by your nominated treating doctor saying that you are restricted from work and that you are not fit to undergo a medical examination because of your work injury, will not be acceptable reason.

If the Insurer still maintains its decision to suspend your payments, then notify the Insurer that you are willing and able to attend if a further appointment is organised. Ask your case manager to arrange a further medical appointment for you. Of course, on the next occasion you should attend GC1 otherwise suspension of your payments will continue.

In all instances we do encourage communication with your case manager and if you are unable to attend appointments, then it would only be courteous that you notify your case manager in advance.

Q –

I haven’t got any money to pay for a Solicitor to act for me, what should I do? Can I get legal aid?

A –

Legal funding is provided through the Work Cover Independent Review Office (WIRO) for injured workers involved in a New South Wales Workers Compensation claim.

If it can be shown that your claim has merit, WIRO will provide funding for legal services. They will also provide funding for medical evidence in support of the claim.

© 2021 
Gerard Malouf & Partners
 — Personal Injury Compensation Lawyers

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