It is alarming to see that injured workers have little to no understanding of their legal entitlements nor their obligations that they must meet when commencing a WorkCover claim. This article will explore some background information of workers compensation in NSW, a brief summary of the main entitlements to injured workers and their ongoing obligations.
Workers Compensation in NSW
The State Insurance Regulatory Authority (SIRA) is a government body that is responsible for the regulation of all NSW workers compensation claims since 1 September 2015. In 2017, iCare (insurance and care NSW) is a government organisation that delivers insurance to injured workers under the NSW workers compensation scheme. They have three approved agents in:
- Employers Mutual NSW Limited (EML)
- Allianz Australia Worker’s Compensation (NSW) Limited
- GIO General Limited.
As of 1 January 2018, EML were selected as the sole claims agent for new NSW workers compensation claims.
Entitlements under the Workers Compensation Act NSW 1987
An injured worker has four main legal entitlements that flow from the Workers Compensation Act NSW 1987. These are:
- Weekly Compensation
- A worker who is deemed unfit for employment from a work-related injury is entitled to weekly compensation. For the first thirteen (13) weeks, an injured worker is entitled to 95% of their pre-injury average weekly earnings (known as PIAWE). Thereafter, the worker is entitled to 80% of their PIAWE up to 130 weeks (two and a half years).
- Thereafter, if it is deemed that you still have no capacity to work then you must make an application and if successful, the insurer will extend your weekly payments up to 260 weeks (5 years).
- An injured worker may receive payments beyond five (5) years if that worker has been assessed as having an agreed whole person impairment of 21% or greater.
- Paid Medical Expenses
- In addition to weekly compensation payments, an injured worker is entitled to have their medical expenses related to their injury paid flowing from Section 60 of the 1987 Act.
- The insurer will cover or reimburse any medical or travel expenses that are deemed reasonably necessary.
- Lump Sum Compensation
- In addition to the above entitlements, an injured worker is entitled to lump sum compensation flowing from Section 66 of the 1987 Act if they meet the relevant threshold for whole person impairment with respect to their injury.
- For physical injuries, an injured worker must be assessed as having 11% whole person impairment or greater to receive any lump sum compensation.
- For psychological injuries, an injured worker must be assessed as having 15% whole person impairment or greater to receive any lump sum compensation.
- Work Injury Damages
- Moreover if an injured worker is assessed at 15% whole person impairment or greater, this entitles them to bring a common law claim for work injury damages. This type of claim will allow the worker to receive wage loss from date of injury to date of retirement if negligence can be proved.
Obligations of injured workers
While it is important to be aware of your legal entitlements under the workers compensation scheme in NSW, it is just as important to understand your ongoing obligations to ensure that there are no issues with this process. The following would be the main obligations of an injured worker:
- SIRA WorkCover Certificates of Capacity
- It is important for an injured worker to ensure that they keep up to date with obtaining their WorkCover Certificates of Capacity evidencing their capacity for employment. This will require the injured worker to regularly confer with their general practitioner. It is fundamental to then send these certificates to the insurer so that they have evidence of your capacity or lack thereof for employment and continue with payments.
- Complying with Workplace Rehabilitation Services
- It is common for a GP to refer you to a workplace rehabilitation service and can generally be a means of resolving any disputes. The services include occupational therapists, physiotherapists, counsellors and psychologists.
- It is important to comply with your rehab providers so that they can ultimately assess your capacity for work and the activities you can currently perform.
- Knowing your insurer and claim number
- It is important to always have your claim number handy. This is so that when you are seeking medical treatment or approval of same, you need to provide your claim number so that the insurer can easily identify your claim.
- Keeping copies all medical evidence and relevant correspondence
- It is an unfortunate scenario that more often than not, workers compensation claims are disputed in one way or another. If this happens, it is important to have all your medical evidence such as reports and scans kept neatly, preferably in chronological order. It is also just as important to ensure that you have kept copies of all correspondence from the insurer.
- This is to ensure that if there is a dispute with your workers compensation claim and you need to seek legal advice, it becomes significantly easier for a legal practitioner to adequately advise you moving forward.
For all your work related legal matters, contact your local Turner Freeman Lawyers office for professional advice.