In New South Wales, you can file a claim for workers’ compensation.
The Workers Compensation Act 1987 (“the Act”) was amended by the NSW government in 2012. Several changes to the Act and supporting rules, as well as a number of court rulings, have since shaped the law that governs an injured worker’s right to workers compensation. What defines a workplace injury and how to file a workers’ compensation claim are discussed in this article.
What is the definition of a workplace injury?
In the first instance, the injured worker must have suffered an ‘injury arising out of or in the course of employment in order to be eligible for workers’ compensation in NSW. This injury encompasses any ‘disease injury,’ such as:
‘any disease contracted by a worker in the course of employment, but only if the employment was the main contributing factor to the disease’; and ‘the aggravation, acceleration, exacerbation, or deterioration of any disease contracted by a worker in the course of employment, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation, or deterioration of the disease.
Compensation is awarded regardless of whether the accident occurred “at or away” from the worker’s place of employment, even in rare cases where an injured worker is travelling between work and home. In all cases, compensation eligibility is determined on a case-by-case basis.
In most situations, compensation will only be paid if there is a clear and direct link between the injured worker’s job and the accident or incident that caused the damage.
How to File a Workers Compensation Claim in NSW
After an injury or the diagnosis of any illness or condition, an injured worker should contact their employer as quickly as feasible. Any occupational injury or work-related disease must be recorded in the register of injuries, and the employer must notify their current insurance.
How much time do I have to file a claim?
Event reporting does not always happen right away, depending on the circumstances of the injury. Although there are exceptions, filing a workers’ compensation claim within 6 months of suffering a working accident is suggested.
An Arbitrator will accept all “contemporaneous medical evidence” supporting a job injury if a workers’ compensation case goes to court. So, if an injured worker is unsure whether or not their injury is “work-related,” or whether or not they may or should pursue workers’ compensation benefits, it’s a good idea to tell their general practitioner or specialist about their workplace injury-related medical condition.
At the earliest opportunity, we strongly advise injured workers to obtain legal guidance from a workers’ compensation lawyer. This will ensure that they get all of the entitlements to which they are entitled.
At Law By Dan, our Workers’ Compensation Lawyers are Accredited Specialists. This means that they are deemed within their profession as being in the top 5% of lawyers in the state.
What is the procedure for reporting a workplace injury?
Injured workers can now submit their injuries to ICARE using a central system. When a workplace injury is reported through the central ICARE system, the injured worker’s right to workers’ compensation is preserved, as a claim number is assigned for future reference.
Is it necessary for me to present medical certificates in order to file a workers’ compensation claim?
It will be necessary to get a WorkCover Certificate of Capacity from your nominated treating doctor or specialist. It must include your job capacity, the workplace injury (for example, right shoulder soreness), and the length of time you will be off work as a result of the workplace injury.
Even if your injury appears to be minor, you should always contact ICARE.
Workers must report any workplace accident to ICARE, even if the damage appears to be minor. This is due to the fact that an injured worker has the right to seek workers’ compensation for the aggravation of their injury until they reach pension age, which in most cases is between the ages of 65 and 67.
How long will it take for my claim to be resolved?
The insurer is required to process a workers’ compensation claim and decide whether or not to accept culpability within a set timeframe, usually no more than two months.
Workers’ compensation claims are frequently approved on a ‘provisional liability’ basis. This indicates that the claim will be approved for a 12-week period and that weekly payment will begin immediately. Before making a final decision, the insurer evaluates the validity of the claim for a period of 12 weeks.
What am I entitled to in terms of weekly payments (wages) and medical costs?
If a claim is approved, weekly benefits are calculated using the “PIAWE” formula, which stands for “Pre-Injury Average Weekly Earnings.”
PIAWE is generally paid at a rate of 95 percent of an injured worker’s usual weekly earnings, including overtime, for the first 13 weeks, then at a reduced rate of 80 percent of an injured worker’s ordinary weekly earnings, including overtime, for the remaining 13 weeks.
There are a few prerequisites for staying on weekly entitlements, but in general, weekly entitlements are divided into three ‘entitlement periods’:
- 0 to 130 weeks;
- 130 to 260 weeks;
- and more than 260 weeks
The ability of an injured worker to work in accordance with the supporting medical data, as well as their evaluation of permanent impairment, determines whether or not they are entitled to weekly compensation.
In some circumstances, an injured worker may be able to claim an extension of their weekly benefits and/or medical expenses beyond their entitlement term. They may remain on weekly benefits if they can show that they have not reached a period of stability (i.e., maximum medical improvement, or “MMI”); for example, if a medical practitioner recommends extended therapy or future surgery.
What medical care and expenses do I have a right to?
The right to medical expense reimbursement is inextricably linked to the right to weekly compensation. The general rule that determines whether insurance will cover medical care is whether it is ‘reasonable and essential.’ There are a few exceptions to these criteria, such as individuals who require surgery or who can show that their condition is not yet stable.
What if my claim for workers’ compensation is denied?
If a claim is denied, the insurer is required to send a “Section 78 notice” to the claimant, together with all supporting information. The Personal Injury Commission can evaluate and/or contest these notices. You must have legal representation in order to review or contest a workers’ compensation judgement.
What exactly is IRO?
WIRO (Independent Review Office) aids injured workers with complaints regarding insurers and their behaviour and, where possible, resolves those concerns within seven working days.
The WIRO can be reached via www.wiro.nsw.gov.au or by calling their hotline at 13 94 76.
An authorised legal service provider (“ALSP”) may receive a legal grant of funds for an injured worker to cover all professional costs owed to a lawyer or barrister, as well as all expenditures paid over the course of the worker’s compensation case. As a result, injured workers in NSW who have been wounded and want to contest an insurer’s judgement have recourse to justice.
How long do you have to file a claim for workers’ compensation (WorkCover)?
In most cases, your weekly workers compensation benefits will continue in NSW until:
- You’re free to go back to work.
- You achieve an agreement on compensation for work-related injuries.
- For the past five years, you’ve been receiving payments (unless your permanent impairment is greater than 20 percent and you have been assessed as being unable to work indefinitely)
- You’ve reached the upper limit for total weekly remuneration.
- You achieve the age of retirement plus one year.
Is it possible to collect workers’ compensation in NSW for the rest of your life?
Your weekly workers’ compensation payments in NSW will be limited to five years if you are evaluated as having a degree of permanent impairment of 20% or less.
Workers with a permanent impairment of more than 20% may be eligible for weekly compensation beyond the five-year limit, as well as lifetime medical treatment, service, or assistance.
What is the maximum workers’ compensation payout in NSW?
The maximum weekly payment for most people is $2242.40 multiplied by five years for a total of $583,024. This limitation does not apply if your permanent disability is more than 20%.
You may be entitled to reimbursement for your medical, hospital, ambulance, rehabilitation, and travel expenditures in addition to these weekly payments.
Your lump payment will be paid on top of these amounts if you submit a successful lump sum claim for damages. You may also be entitled to a lump sum payment if you are permanently disabled. Prior to any damages settlement, the permanent impairment payout must be provided. Workers’ compensation lump-sum settlements in NSW are established through negotiation with the insurer, thus hiring a competent workers compensation lawyer to represent you is strongly advised.
Is it true that all workers’ compensation cases are settled?
No. Workers’ compensation payments in NSW are designed to help people transition back to work by covering lost income and medical expenses. However, in the following conditions, your case may be settled:
- You and your workers’ compensation insurance work out a lump-sum payment to resolve your claim.
- When weekly payments and medical bills halt, a settlement is reached.
- You are given a lump sum payment after a successful work injury damages suit.
A settlement for work injury damages is a complete and final settlement of all of your rights and entitlements under the Workers Compensation Act.
How much will my workers’ compensation settlement be worth?
Lump-sum settlements in workers’ compensation cases can be considerable. In the 12 months leading up to February 2021, over $535 million in common law payouts and permanent impairment lump sums* were paid to injured workers in NSW. Permanent impairment compensation range from $22,480 to $631,370 in one-time payments.
If you’re negotiating a workers’ compensation settlement with an insurer, you should get independent legal advice and consider having a specialised workers’ compensation lawyer negotiate the settlement on your behalf — you’ll almost certainly receive a better deal with a lawyer on your side. Talk to our Accredited Specialists today at Law By Dan.
Is it possible to return to work following a workers’ compensation settlement?
Yes, you can return to work as soon as you’re able. If you heal from your injuries and are able to return to work, your workers’ compensation settlement does not restrict you from working and should have no bearing on how you are treated at work.
Is it possible to receive a pain and suffering award under workers’ compensation (WorkCover)?
No, pain and suffering awards under workers compensation (WorkCover) are not available in NSW. However, you can file a claim for permanent disability, which is a lump sum payment to compensate you for the total impact of your job injury on your life. This lump sum payment is in addition to any weekly payments, medical bills, and other expenditures you may have incurred.
To be eligible for a permanent impairment settlement, you must have 11 percent or more permanent disability for a physical injury and 15 percent or more for a primary psychological injury.
What is the difference between a common law and a work injury damages claim?
If your injury was caused by your employer’s negligence, you can file a work injury damages claim for a lump sum workers’ compensation settlement.
The majority of work injury compensation payments in NSW are based on past and prospective loss of earning capacity. Once you’ve filed a claim for work-related injuries, you’re no longer eligible for workers’ compensation benefits (such as weekly payments and medical, hospital, and rehabilitation expenditures). Additionally, the settlement sum may be used to repay the weekly instalments that have already been made to you.
How do I file a claim for work-related injuries?
You’ll need the following information to file a claim for work injury damages in NSW:
- Information about your injury and limitations
- When did the damage occur?
- Any prior injury or disease that may have contributed to the limitations
- Information about any compensation you’ve received for past injuries or illnesses
- Information about previous jobs that may have resulted in the injury
- Details about how your employer failed to uphold their duty of care to you.
- The amount of damages you’re seeking, as well as any supporting documents
- Your claim must contain a report from a permanent impairment assessor.
Will I have to go to court to recover compensation for my work-related injuries?
If you don’t agree with an insurer’s settlement offer, you may want to consider mediation or going to court. Unless you have the court’s permission, you must file a lawsuit for work injury damages within three years of the date of the injury.
You must serve a pre-filing statement on your employer or the insurer before you may begin mediation or court procedures for work injury damages. This statement must include the contents of the claim as well as the evidence you’ll be using to support your claim. Before going to court, the claim must usually be referred to the Workers Compensation Commission for mediation.
Through discussions with all parties, the Workers Compensation Commission will endeavour to mediate and negotiate a settlement.
What is the definition of common law damages?
Workplace injuries might result in significant remuneration. A person has the right to seek compensation for their injuries; these are known as common law claims for damages (or common law damages).
A person may also make a claim for lost wages or out-of-pocket expenses incurred as a result of the injury. Common law damages can be used to recover lost superannuation benefits or medical bills if the other person or employer was negligent and the claimant was seriously injured. Please contact a personal injury lawyer at Owen Hodge Lawyers if you have any additional queries or require legal assistance regarding work injury damages.
Who is eligible to file a common law claim?
To make a claim for workplace injury damages, the victim must:
- Have a working injury in NSW and be classified as a “worker” under the Act
- Be able to demonstrate that the workplace harm was caused by the employer’s negligence.
- Have a persistent impairment of at least 15% (assessed by a specialist)
Claim payouts and benefits under common law
An injured worker has the right to claim ‘pain and suffering’ payments under Section 67 of the Act on or before June 19, 2012 (if there was a 10% or greater “whole person disability”).
Following revisions to the Act, the right to make such a claim was removed. A permanent impairment, as defined by the revised Act, is an injury that cannot be entirely healed and continues to cause pain and restriction of movement.
The modified Act now stipulates that a person is entitled to a lump sum payment if they have a permanent handicap of 10% to 15% or more (in cases of physical and psychological injury, respectively).
Income loss in the past and in the future
An impaired person is able to make a common law claim for damages (NSW) for past economic loss due to the loss of income under Section 151G of the Act. The injured worker can also instigate legal action for future lost wages as a result of his or her infirmity and inability to work.
Care Expenses
In the event that an injured worker is unable to care for themselves and is being cared for by family members or paid professionals, the amount of damages granted is used to pay those professionals. This is due to the fact that the injured worker will be fully reliant on family members or a professional for the rest of their lives.
Medical and rehabilitation costs incurred in the past and in the future
A worker who has been injured has the right to file a claim for medical and rehabilitation expenditures. This includes the following:
- Expenses for medical care (including doctors and specialists);
- Expenses for hospital services;
- Expenses for ambulance services;
- Expenses for rehabilitation such as physiotherapy;
- and other relevant expenses.
Expenses paid out of pocket
Out-of-pocket expenses may also be claimed by the injured worker, including:
- Expenses for assistive devices and appliances (such as crutches)
- Expenses for travel to medical appointments and treatments
Superannuation entitlements.
If a person loses their superannuation benefits due to a working injury, they can sue for personal injury damages under common law if the other party is culpable. You can claim lost superannuation as part of your damages in circumstances where common law damages are available and you are entitled to economic loss damages.
Past contributions that have been lost are treated the same as future contributions that have been lost. The income lost as a result of these contributions to the superannuation fund will be estimated and claimed as well.
No Win No Fee Workers Compensation Lawyers
At Law By Dan, not only are our compensation lawyers across NSW Accredited Personal Injury Law Specialists, our lawyers all offer no win no fee.
The ‘no win, no fee’ guarantee means that you can get legal help for your personal injury claim without having to pay any legal fees upfront. Any expenses you may be asked to pay later are contingent costs, which means that payment is reliant on a successful conclusion of your compensation claim.
What types of cases are covered by the “no win, no fee” policy?
Car accident insurance claims, motor vehicle accident compensation claims, workers compensation claims, financial planning negligence claims, and medical negligence claims are all covered by the ‘no win no fee’ agreement.
If I win my claim, how will my fees be calculated?
A ‘win’ is broadly characterised as a successful outcome of your case, which can include a favourable court judgement, a settlement, or an agreement that ends legal proceedings.
If you win your claim, your legal fees will cover the following expenses:
Fees for professional services: To pay the time your lawyer and their legal team spend working on your case. This could include an uplift charge as compensation for the lawyer taking on the risk that a claim will fail and no costs would be paid.
Costs such as phone calls, faxes, photocopies, and mailing are covered by general expenses fees.
External expenses such as medical reports, expert fees, and court fees are covered by disbursements fees.
These fees are usually determined prior to the occurrence of the win.
Why is it vital to have a “no win, no fee” policy?
Injured parties benefit from a ‘no win no fee’ arrangement because they can contact lawyers who specialise in personal injury lawsuits without having to worry about paying the legal fees upfront. This is a gamechanger because without it, most Australians simply would not be able to litigate because of the costs in doing so. Notwithstanding this, no win no fee serves to maximise the compensation you can collect by giving lawyers an extra incentive to work hard because their fees are only paid if you receive a favourable outcome. In personal injury law, the emphasis is on the client, and the ‘no win, no fee’ structure serves to alleviate the load on the injured parties during the compensation claims process.
If you have been injured at work in New South Wales, talk to us today at Law By Dan.