Understanding Workers Compensation Claims

PUBLISHED 07 Apr 2011
It is a requirement by employers in all states of Australia to have some form of workers compensation insurance cover for the protection of any of their injured worker. In New South Wales, though it is compulsory for employers to have a workers compensation insurance policy, some employers fail to do so. There are strict penalties for those employers found to have no current workers compensation policy.
 
A worker who has sustained an injury during the course of the employment will still be entitled to certain entitlements under the workers compensation laws even though the employer does not have a workers compensation policy. In this situation the injured worker will be covered directly by the WorkCover Authority under its Uninsured Liability and Indemnity Scheme.
 
The workers compensation law in New South Wales is governed by the Workers Compensation Act, 1987. This legislature provides various entitlements available for injured workers however, the three main entitlements include the following:-
 
1.         Payments of reasonable medical expenses incurred as a result of the work related injury;
 
2.         Weekly compensation payments during any periods of incapacity;
 
3.         Lump sum claim for impairment and in some instances, a further lump sum claim for pain and suffering.
 
With regards to point 1 above, reasonable medical expenses are regarded those types of medical treatment which would be considered as practical to assist an injured worker towards recovery and hopefully towards return to work. Medical expenses also includes travel expenses, to and from visits to medical providers which include General Practitioners, Physiotherapists, Specialist appointments and other medical attendances.
 
With regards to point 2 above, weekly compensation payments is the terminology used in reference to compensation for loss of wages. Weekly compensation payments is available for those injured and who are incapacitated and as a result of the incapacity, are unable to earn their normal wage. Payments of weekly compensation will be available if someone is totally incapacitated (and cannot attend work at all) or can be in the form of makeup pay (when an injured worker returns to restricted duties and restricted hours). Makeup will be paid to an approximate rate close to pre-injury earnings.
 
It should be noted that weekly compensation payments are not necessarily paid on a weekly basis. They may be paid fortnightly or even monthly. It also should be noted that an injured worker may not receive his or her entire wage loss during periods of incapacity. Furthermore, compensation of loss of wages is not necessarily on a dollar for dollar basis.
 
With regards to point 3 above, if an injured worker had sustained an injury which resulted in a permanent impairment, then they can claim for lump sum benefits in relation to the impairment. Under the current scheme, if the percentage of impairment is 10% whole person impairment or more, then an injured worker can also claim for a further lump sum known as a claim for pain and suffering.
 
If an employee had sustained an injury during the course of their employment as a result of the employer’s negligence and has an impairment of 15% whole person impairment or more may sue the employer for negligence. An assessment of 15% whole person impairment needs to be agreed upon by the insurer or alternatively determined by an Approved Medical Specialist who is appointment by the Workers Compensation Commission. In common law claims, an injured worker will be entitled to claim all past and future economic loss, including loss of wages and loss of superannuation. This can be substantial. Any such claims would need to be commenced within three years of the date of injury and any proceedings thereafter will be statute barred.
 
In summary, the following are important points when considering pursuing a common law claim for work injury damages:-
 
1.         An impairment of 15% whole person impairment or more is established;
 
2.         The injuries caused resulted from the employer’s negligence (and this includes the negligence of a co-worker as the employer will be liable for that co-worker’s actions);
 
3.         Economic loss has resulted or will result from the injury;
 
4.         The claim is to be lodged within three years of the date of injury.
 
Visitors from overseas are covered and protected with entitlements as referred to above. If a visitor from overseas is working without a working visa, they would still be entitled for cover in relation to medical treatment and possibly a lump sum claim for impairment and pain and suffering however, they will not be entitled to a claim for weekly compensation.
 
In summary, an overseas visitor with a working visa will be entitled to the following:-
 
1.         Payments of reasonable medical expenses incurred as a result of the work related injury;
 
2.         Weekly compensation payments during any periods of incapacity up to the limit of the hours allowed by the working visa;
 
3.         Lump sum claim for impairment.
 
In summary, an overseas visitor with no working visa would be entitled to the following:-
 
1.         Payments of reasonable medical expenses;
 
2.         Lump sum claim for impairment and possibly lump sum claim for pain and suffering.
 
It is vitally important that the employer is notified of any injuries sustained. The notification needs to be done as soon as possible. An injured worker needs to then have a workers’ compensation claim lodged with the workers compensation insurer at risk. The lodgment is done online or by way of a claim form A workers compensation claim form needs to be completed and sent to the employer and if the insurer is known, a copy should be sent to the insurer.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.