Biz Articles
WORKERS' COMPENSATION INSURANCE
Youth 2 Youth
Did you know, not only do you have the right to claim for an injury sustained while at work, you might be able to make a claim for an injury sustained on your way to or from work, or during a recess such as lunchtime?
Or that if you die from your injuries your family might be able to make a claim on your behalf? For instance, if the primary income provider in your household has been injured or killed in a car accident on the way to work you might be eligible to make a claim for compensation.
You might also be able to make a claim if you have experienced psychological problems as a result of your employment or suffered an aggravation of an existing injury.
Workers' compensation is a form of insurance that provides compensation to you if you have been injured in the course of your employment. Every employer must have workers' compensation insurance. WorkCover is the government body that oversees the operation of the compensation system in New South Wales.
If you discover that your employer is self-insured you have the same rights as any other worker in relation to workers' compensation. It is important to understand your legal rights to make a claim against your employer if you have sustained an injury at work or on your way to or from work. If you do not understand your legal rights, obligations and the processes involved in making an application for compensation you may not fully appreciate the claim that is available to you.
Knowing your rights will help you avoid costly mistakes. For example:
- if you are approached by your employer's insurer, an insurance assessor or anyone else to make a statement concerning your claim or to discuss your claim, you are not legally obliged to do so; you are only required to fill out the claim form and provide medical certificates.
- your employer cannot reduce or terminate your compensation payments without notifying you first of the reason for the reduction or termination.
- It is important to take action promptly as the workers' compensation legislation imposes time limits for making applications for workers' compensation and for reviewing decisions.
I HURT MYSELF AT WORK. WHAT SHOULD I DO?
You should report the injury to your employer as soon as possible and have it entered into the Accident Book at work.
A Compensation Claim Form should be obtained from your employer and completed.
You should see a doctor and obtain a WorkCover Certificate certifying as to your unfitness for work and also certifying that your work was a substantial contributing factor to your medical condition. Then both documents should be submitted to your employer. It is recommended that you retain a copy of all documents submitted to your employer.
It will be necessary to show that you were a "worker" within the meaning of the Workers' Compensation Act. Even if you were not an "employee" in the general sense of the word, but an "independent contractor", you may still qualify for benefits under this Act. The injury, disease or medical condition must fall within the relevant categories specified in the Act.
In the case of a death attributable to work, the dependant spouse and children can claim compensation.
KEY STEPS IN PURSUING A CLAIM
The key steps in pursuing a workers' compensation claim are:
- Determining whether the injury or death comes within the provisions of the Workers' Compensation Act. Obtaining factual and medical evidence necessary to prove the claim.
- Working out whether it is in your interest to obtain lump sum compensation for permanent disability or to sue your employer for negligence at Common Law.
- Calculating the amount of compensation you are likely to receive.
- Making the claim on the employer and the insurer.
- Forwarding your Application for Conciliation to the Workers Compensation Resolution Service.
- Preparing your Application for Determination for filing in the Compensation Court to commence court action.
- Preparing a Wages Schedule if the claim relates to weekly wage loss compensation.
- If the injury is in dispute, arrange to take statements from witnesses.
- Arrange for the medical evidence to be presented to court by way of medical reports or by calling the doctors to give evidence at your Court hearing.
WORKERS' COMPENSATION INSURANCE ARE YOU ELIGIBLE?
You can claim workers' compensation benefits if: you are a "worker" as defined in the Workers' Compensation Act and; your injury, disease or medical condition falls within the categories listed below.
ARE YOU A WORKER?
You must be a "worker", that is a person working for fee or reward. In many cases this includes independent contractors. For instance, people who enter into contracts to supply labour to the organisation which previously directly employed them. If such "independent contractors" work only for the one organisation and do not themselves employ workers, then there is every likelihood that they would be classified as "deemed" workers and, therefore, entitled to the benefits of the Workers' Compensation Act (NSW).
DO YOU FALL WITHIN A CATEGORY?
A person who undertakes the carrying out of a contract to perform work where the value of the contract is more than $10.00 and who neither employs workers him or herself and does not advertise for work and who does not carry out work on his or her own behalf may also be deemed to be a worker.
Having satisfied the test of "worker" the next question that you have to ask is whether your injury falls within the following categories: You were injured doing something during an ordinary recess such as your lunchtime, morning tea break, afternoon tea break, etc.
Your injury occurred whilst on a journey to or from work, or to and from some educational institution which you were attending by arrangement with your employer, or on and certain other journeys as set out in the Workers' Compensation Act. Your injury occurred at work, and your work was "a substantial contributing factor" to your injury. The Judges have decided that "substantial contributing factor" means a "weighty" or important factor in the causation of the injury or medical condition. If you suffer from a disease, has it been caused by your work or has it been substantially contributed to, accelerated by or exacerbated by your work?
It occurred as a result of negligence or carelessness on the part of your employer, fellow employees or some other person or organisation.
WHAT ARE MY ENTITLEMENTS?
TOTAL INCAPACITY
If you are covered by an Award, you get the Award rate of pay during the first six months of total incapacity.
If you are not covered by an Award, you get 80% of your average weekly earnings for the first six months.
The maximum amount you can receive at the present time is $1,197.20 per week.
After the first six months, you get a statutory amount of compensation determined by the Government. The amount goes up by a few dollars in accordance with the Consumer Price Index, on the 1st of April and on the 1st of October. Currently, a single person with no dependents receives $281.60 per week. This amount increases with each dependent.
PARTIAL INCAPACITY
During the first six months, if you are unable to secure suitable duties, you will be treated as totally incapacitated.
After the first six months, you will be entitled to the greater of 80% of the average weekly earnings/award rate or the statutory rate. You will receive similar amounts of weekly compensation if you are undergoing approved rehabilitation. This 80% compensation lasts for a maximum of 26 weeks.
After that, the maximum rate is the statutory rate which is payable for a further period of 26 weeks.
You are entitled to recover all of your out of pocket expenses such as medical, rehabilitation, travelling for treatment, physiotherapy etc.
LUMP SUMS
If you have suffered a permanent impairment to certain parts of your body, you may be entitled to a lump sum up to a maximum of $121,000 for multiple impairments. The extent of the impairment needs to be assessed by specialist doctors.
If you have suffered a partial loss or loss of function a proportionate amount of the maximum amount can be claimed. For example, for total loss of use of the dominant hand you are entitled to a sum of $70,000. If your loss is assessed at 20% you can claim $14,000.
If the impairment is a serious one (ie worth more than $10,000), you will be entitled to additional amounts of money in respect of pain and suffering. The current maximum amount payable for pain and suffering is $50,000. You may claim a proportion of that amount depending on how the disability affects you personally.
COMMON LAW NEGLIGENCE
If you suffered a serious injury which occurred due to negligence on the part of the employer, you may have a Common Law action against the employer, which would be financially more beneficial to you than obtaining a lump sum for a permanent impairment. Such actions must be commenced within three years after the accident.
You can also claim compensation if the injury occurred on the way to or from work, or during a recess such as lunchtime.
SOME RELEVANT ISSUES
CAN THEY SACK ME FOR CLAIMING COMPENSATION?
Workers' Compensation is a legal entitlement and employers cannot penalise workers for exercising their rights to claim compensation if they have suffered an injury at work or in other compensable circumstances. All employers must have Workers' Compensation insurance and your monetary entitlements are paid by the insurer and do not come out of the employer's pocket. The employer cannot sack you within the first six months of your unfitness for work.
WHAT IF MY EMPLOYER IS UNINSURED?
You may still claim Workers' Compensation through the Uninsured Liability and Indemnity Scheme, which is run by the WorkCover Authority.
WHAT ARE LIGHT DUTIES?
When your condition improves, if your doctor thinks that you can now perform certain work duties, he may certify you fit for selected or light duties. You should then take that certificate to the employer and request work accordingly.
If the employer is unable to provide such work, you will continue to receive full compensation payments. If you do undertake light duties, your employer will pay you for the work performed, and the insurer will pay you "make-up" money.
WHAT IF I HAD A PRIOR INJURY?
If there is any pre-existing degeneration or prior injury which contributes to your present disability, the Court is required to deduct the extent of that contribution from the compensation you receive for permanent disability. If it is difficult to determine the extent of the contribution made by the prior injury or condition to your current disability, the Court will deduct 10% from your award of lump sum compensation.
DOES THE INJURY HAVE TO BE A PHYSICAL ONE?
You can also claim compensation for psychological injury. The court has to be satisfied that, in addition to the employment being a "substantial contributing factor" to the condition, it did not happen as a result of "reasonable action" by your employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal.
FURTHER INFORMATION
Please recommend a solicitor who is experienced in this area of law.
This Information Outline is available courtesy of AussieLegal's online legal information and law firm referral service.
The information is provided by participating law firms. Accordingly, neither AussieLegal Pty Limited nor Youth 2 Youth accepts any responsibility for loss, damage, cost or expense arising from using the information provided.
As the information provided by participating law firms is of a general nature, the law firms accept no liability for any loss, damage, cost or expense that arises from relying on the information provided by them. The information is provided solely on the basis that readers will be responsible for making their own assessment of it. This recognises that despite the participating law firm's best endeavours to provide up to date accurate legal information and documents, you may misunderstand or misinterpret instructions or advice.