Work Injury Claims

If you have been injured while at work you may be entitled to compensation under the NSW Workers Compensation Scheme.

Your injury may be sudden, such as from an accident, or happen progressively over time, for example:

• Repetitive strain injury due to repeat lifting, or
• Cancer or respiratory disease due to repeated exposure to chemicals, or.
• Psychological injury due to bullying

To bring a workers compensation claim, you don’t have to prove your employer was negligent (at fault), but you do have to establish that your injury arose out of, or in the course of your employment, and that your work was either a substantial contributing factor to the injury or the main contributing factor if you contracted a disease from your work.

In summary if you are injured at work, you must:

• Notify your employer of the injury as soon as possible. Your injury should be recorded in the Register of Injuries.
• If you are unable to work or can only work reduced hours, provide a document called a Certificate of Capacity to your employer or your employer’s Workers Compensation insurer. Part of the Certificate must be completed by your doctor. Generally, an updated Certificate of Capacity will have to be provided to the insurer every 28 days while you have either a reduced or no capacity for work and wish to be paid weekly payments. Most doctors will have a Certificate of Capacity at their practice. You can obtain a Certificate of Capacity at SIRA website
• Make reasonable efforts to return to work as soon as you can and cooperate with the workers compensation insurer in developing a return-to-work plan.

Below we have set out some commonly asked questions and provided some useful links to enable you to obtain a Claim Form and a Certificate of Capacity.

Having read the information provided below, if you are unsure how to proceed or think you have other rights in additional to your workers compensation rights, please call us on 02 9252 8824. We will give you advice on how to proceed and whether you should engage a lawyer at this stage in your claim. We understand that being injured and trying to work out how to bring a claim can be very frustrating. We can give you help with your claim.

What to do first?

As soon as possible after you become aware that you have suffered an injury or illness as a result of work notify your employer of the injury. Advise the employer of:

• The date and time of injury.
• How the injury happened.
• A description of the injury.

Notification to the employer can be in writing (including via email) or verbal (over the phone or in person).

If you wish, you can also notify your employer’s workers compensation insurer of the injury.

Under the law the employer is required to notify the workers compensation injury of your injury within 48 hours of been made aware of the injury.

What is the time limit for lodging a claim with the insurer?

The claim should be lodged as soon as possible and must be lodged within 6 months of the date of injury. Your employer is obliged to provide you with the necessary information to allow you to lodge a claim if you request it.

A claim can be lodged outside the 6-month period if there is a reasonable cause to explain why the claim was not lodged within 6-months of the injury.

Your employer is obliged to provide you with the name of its Workers Compensation Insurer. If your employer refuses to do so, contact the Independent Review Office (IRO) on 13 94 76. If you provide your employer’s details, IRO will be able to advise you of the details of the Workers Compensation Insurer.

What if my Employer has no Workers Compensation Insurance?

Employers in NSW are obliged to carry workers compensation insurance. If your employer does not have insurance or if you cannot identify the insurer, you can still bring a claim by lodging your claim with the Nominal Defendant, WorkCover NSW, Locked Bag 2906, Lisarow 2252.

What compensation can I claim?

The compensation you can claim will depend on your individual circumstances but as a general rule you may be entitled to:

• Receive weekly payments while working reduced hours or not working due to your injury at least for a certain period of time,
• Have your reasonable and necessary medical expenses paid for a period of time, and
• Depending on your percentage of Whole Person Impairment (WPI) you may be entitled to a section 66 Lump Sum Claim, once your injury has stabilised.

If you have a degree of Impairment of at least 15% Whole Person Impairment and you were injured due to your employer’s negligence you may also be entitled to bring a Work Injury Damages claim to recover your full past loss of wages and your future loss of wages plus superannuation.

What Weekly Payments am I entitled to?

The amount the insurer has to pay in weekly payments is determined by the NSW Workers Compensation Legislation as follows:

If you have no work capacity

• For the first 13 weeks from the date of your injury, while you have no capacity for work, the insurer will pay weekly payments to you of 95% of your pre-injury average weekly earnings.
• If you continue to have no work capacity post the 13-week period, the amount the insurer has to pay in weekly payments drops to 80% of your pre-injury average weekly earnings. This level of weekly payments can continue from 14 to 130 weeks if you continue to have no work capacity as certified by a doctor.
• After 130 weeks your weekly payment will cease unless you continue to have no work capacity and that situation is likely to continue indefinitely. If you meet the criteria to continue receiving weekly payments, your weekly payments will continue at 80% of pre-accident average weekly earnings up to 260 weeks post injury (5 years post injury).
• At the 5 year mark even if you continue to have no work capacity all weekly payments would cease unless your degree of Whole Person Impairment (WPI), as assessed by a suitably qualified doctor, is greater than 20% and you are assessed by the insurer as having no work capacity.

If you have some work capacity

• If you are able to work to some degree, the amount the insurer has to pay changes slightly. In this scenario in the first 13 weeks, you would be paid 95% of your pre-injury average weekly earnings less your weekly earnings from your work.
• For the period 14 to 130 weeks if you are working at least 15 hours or more per week, the insurer is required to pay 95% of your pre-injury average weekly earnings less your weekly earnings from your work.
• From 131 weeks to 260 weeks (5 years) you are entitled to continue receiving weekly payments at the rate of 80% of your pre-injury average weekly earnings less your weekly earnings from your work but only if you are working at least 15 hours a week and earning at least $200 per week (this rate changes each April and October) and you have been assessed by the insurer as being unable indefinitely to increase your work hours.
• At the 5 year mark your entitlement only continues if you have a WPI impairment of 21% or and you have no work capacity or you are working at least 15 hours a week and earning at least $200 per week. The weekly payments would be calculated at 80% of your pre-injury average weekly earnings.
• Weekly payments stop on retirement.

What Medical Treatment Expenses will the Insurer Pay?

• The insurer is required to pay for reasonable and necessary treatment. This can include GP, specialists, medication costs, physiotherapist, chiropractors, psychiatrist, psychologist etc. You, or the treating health professionals you attend, should seek approval from the insurer for any treatment before commencing that treatment.
• How long the insurer has to pay for treatment is dependent on your degree of whole person impairment (WPI) and the date you receive the last weekly payment for loss of wages as follows:
  • If the injury is assessed at 10% WPI or less treatment and related expenses can be claimed for two years after weekly payments stop being paid or for two years from the date of the claim if no weekly payments made.
  • If the injury is assessed between 11% and 20% – treatment and related expenses can be claimed for five years after weekly payments stop being paid or for five years from the date of the claim if no weekly payments made.
  • If the injury is assessed at 21% or above – treatment and related expenses can be claimed for life.
• The insurer will also cover your reasonable travel expenses in attending medical treatment. You will need to provide receipts, e.g., bus tickets, and taxi receipts. If travelling by car, the insurer will pay $0.66 per kilometre. (This amount is reviewed annually).

When can I make a S66 Lump Sum Claim?

Once your condition has stabilised you may be entitled to a lump sum payment. Generally, your condition will be considered stabilised 12 months post injury or 6 to 12 months post-surgery. You are only entitled to a lump sum payment if your degree of Whole Person Impairment (WPI) is 11% or more. You are entitled to only one lump sum payment for the same injury; thus, it is important to wait until your condition is stabilised before making the claim. There are some exceptions to this rule, thus you may need to seek legal advice in relation to your individual case.

How do I make a S66 Lump Sum Claim?

Once your medical condition has stabilised, we would send you to see a worker’s compensation accredited doctor to give an opinion on your degree of whole person impairment. If your degree of impairment is 11% or more, we would discuss with you putting an offer based on the percentage of impairment. The insurer has 2 months to either accept the offer or send you to a doctor of its choice for an opinion on WPI.

If agreement cannot be reached as to the lump sum amount you should receive, your case may have to be lodged with the Workers Compensation Commission for an independent doctor from the Commission to give an opinion regarding your degree of WPI.

Do I need a lawyer and what legal costs do I have to pay?

You only need to engage a lawyer if there is a dispute with the insurer, for example:

• The insurer refuses to pay for treatment recommended by your treating doctor as they do not consider it reasonable and necessary or required due to the work injury, or
• The insurer denies liability for your claim and thus refuses to pay your weekly payments and treatment because they say your injury is not connected with your work.
• You want to investigate making a section 66 lump sum claim.
• You want to investigate bring a Work Injury Damages claim.
• You do not agree with the insurer’s work capacity decision.

The insurer has wide powers to make a decision as to your work capacity and the legislation gives you very limited rights of review of the insurer’s work capacity decision. This is different from the situation where the insurer denies liability and for that reason refuses to pay weekly payments. If this occurs and you are not sure of your rights and options, we are happy to speak with you to give you further information.

You should speak with a lawyer at the onset of your claim to find out if you have other legal rights outside of Workers Compensation which may be more generous. For example, you may have been injured while working in faulty premises not owned by your employer or on a site where your employer is not the head contractor. In those scenarios you may have a public liability claim against the owner of the building or the head contractor as well as your workers compensation claim against your employer. There is generally a 3-year limitation period for such civil claims. That means Court documents for the claim must be lodged within 3 years of the date of discoverability of each of the following:

• The fact the injury occurred.
• The fact the injury was caused by the fault of another.
• The fact the injury was sufficiently serious to justify bring a claim.

Legal Costs under the Workers Compensation Scheme

If you engage a lawyer to represent you due to a dispute with the insurer or to bring a section 66 lump sum claim, you won’t incur legal costs as the lawyer’s legal costs are covered by the Government IRO grant scheme, which the lawyer will apply for on your behalf.

When can I bring a Work Injury Damages Claim?

Separate to your entitlements under the Workers Compensation Scheme you may also be entitled to bring a claim called a Work Injury Damages Claim (WID) against your employer.

You can only bring a WID claim if:

• Your degree of Whole Person Impairment is at least 15%.
• Your injury occurred due to the negligence of your employer.

Before you can finalise a WID claim, you will also need to finalise the section 66 claim.

We recommend you engage a lawyer if you wish to bring a WID claim. Such a claim entitles you to claim past and future loss of wages including superannuation.

Generally, a WID claim has to be lodged with the Court within 3 years of the date of your injury. There are however a number of procedural steps that must be taken before the claim can be lodged with the Court and some of those steps have the effect of stopping time. If you are not sure if it is too late to bring a claim- call us on 02 9252 8824 for advice.

Legal Costs in a Work Injury Damages Claim are different to a workers compensation claim. IRO does not pay the legal costs in a Work injury Damages claim. The insurer will pay some of your legal costs if you win your Work Injury Damages case.

The legal costs consist of two components:

• The Professional Costs for the work we do in running your case. The insurer has to pay a proportion of those costs. You do not have to pay our professional costs until you receive compensation from your case. If you don’t receive compensation, we don’t seek the payment of our costs – this is referred to as a conditional cost agreement or a no win no fee agreement.
• In the event your case goes to court and you lose the case, the court would order you to pay a proportion of the insurer’s legal costs.
• Disbursements– This refers to money spent on obtaining the evidence, for example medical records and reports, engineer’s reports, accountant’s reports and also expenses incurred in photocopying/printing/phone and faxes. If you can pay the disbursements as they are incurred, particularly for medical reports you will avoid incurring overdraft interest. If you win your case the insurer will have to reimburse you for a percentage of the disbursements incurred. Unless you elect to pay the disbursements as they are incurred, the disbursements also do not become payable until you receive compensation.