NSW Workers Compensation Claims
Workers who are injured in New South Wales with a New South Wales employer, or with a connection to New South Wales, are able to make a claim for statutory benefits under the New South Wales Workers’ Compensation Scheme.
Payments are made according to the Workers Compensation Act 1987 and the Workplace Injury Management Act 1998. Three separate schemes exist for workers’ compensation throughout New South Wales.
These are for:
- Police, Fire and Ambulance personnel, volunteer bush fire fighters and emergency service volunteers.
- Coa lminers.
- All other workers.
Most workers within New South Wales fall under category 3 above. The law has been substantially altered since June 2012. Benefits available under the Act are now roughly grouped under 5 categories:
- Weekly payments of workers’ compensation.
- Payment of medical expenses.
- Payment of permanent impairment lump sums.
- Death benefits.
- Work injury damages claims (common law claims).
Weekly payments of worker’s compensation are paid based on a formula that exists under the Act and paid under “Entitlement Periods”.
The duration of the weekly benefits is linked to the permanent impairment amount. Most permanent impairment amounts cannot be ascertained for many months or even years after the work injury.
The Workers Compensation Commission has jurisdiction to order weekly payments of worker’s compensation up to 2½ years from the date of the accident. In order to receive weekly benefits you must obtain a “Certificate of Capacity” from your general practitioner and have that Certificate forwarded to your employer and to the insurer.
If you do not obtain a Certificate of Capacity the insurer will not pay you weekly payments of worker’s compensation.
The insurer is obliged to pay your medical expenses that are reasonably necessary and pre-approved by the insurer.
If there is a dispute about the payment of medical expenses you have rights to prosecute the matter before the NSW Workers Compensation Commission. Additionally, all pharmaceutical and physiotherapy expenses are paid provided that those expenses are reasonably necessary.
Travel expenses are also paid at the rate of $0.55/km both to and from the treating doctor, physiotherapist or other treatment provider.
A lump sum payment is made under Section 66 of the Act once your medical condition has stabilised. The amount of the whole person impairment is calculated with reference to the American Guides to the Evaluation of Permanent Impairment 5th Edition together with the NSW WorkCover Guides for the Evaluation of Permanent Impairment.
Assessments of this nature are conducted by a specialist doctor and a claim served on the insurance company once you have reached maximum medical improvement, that is after your condition has stabilised. The insurer will then arrange for you to be assessed by one of their doctors and make an offer of settlement. If the offer is insufficient the claim can then be forwarded to the NSW Workers Compensation Commission for determination.
Please note a 10% whole person impairment threshold exists in respect of payment of a lump sum claim under Section 66 of the Act. You are also only entitled to one lump sum claim for permanent impairment. The 10% threshold, and the one claim rule, does not apply to police, fire and ambulance personnel and does not apply to coalminers . The lump sum payable under Section 66 of the Act is determined by the date of your injury and by certain tables issued under legislation. The benefits for lump sum amounts have increased substantially for injuries received on and from the 5th August 2015.
Normally most people need a solicitor to prosecute this type of claim. If you are able to demonstrate a level of whole person impairment of 15% or above, and you can show employer negligence, you may be eligible to make a claim for “work injury damages” which is a claim for the economic losses that you have sustained as a result of your injury.
This claim for economic loss is not limited by the time limits for the payment of weekly benefits, but rather can be calculated through to retirement age. The claim for wages includes net wages loss together with any losses of superannuation.
In the unfortunate circumstance that a worker receives fatal injuries during the course of employment benefits exist for the surviving spouse and the surviving children. In addition funeral expenses are also met by the worker’s compensation insurer. The lump sum payable for a worker who dies after the 5th August 2015 is $750,000.00.
This amount will be indexed on the 1st April and 1st October each year. In the event that there is a time delay between the date of the injury and the date of the worker’s death it is sometimes feasible to pursue a lump sum claim under Section 66 of the Act for the deceased worker and also receive the lump sum for the death benefit under Section 25 of the Act.
The lump sum death benefit is apportioned between the dependents depending on the basis of their dependency.
Insurers commonly examine death benefit claims very closely, particularly if the injury that causes the worker’s death does not have a clear cut origin, or has an ambiguous connection to employment, e.g. a heart attack. Specialist legal advice is required at that time in order to properly marshal and present the evidence before the Commission to make sure the proper death benefit is payable.
Attwood Marshall have experience in presenting and successfully prosecuting these claims.
If a worker has a level of whole person impairment of 15% or above, and the employer is negligent in the circumstances of the injury, the worker may elect to prosecute a common law damages claim.
For a common law damages claim to succeed you must demonstrate that you have a level of whole person impairment of 15% or above and you must have received that lump sum payment under Section 66 of the Act. There is then a lengthy pre-court procedure involved of serving Particulars, serving a Pre-filing Statement and thereafter attending a mediation before commencing court proceedings. The system is designed for matters to settle before they are commenced by way of a District Court Statement of Claim.
Commonly an insurer will make an insufficient offer at stages prior to the issuing of court proceedings and so in most circumstances it is necessary to enter the matter in the Court List in order to obtain a reasonable offer of settlement from the insurance company.
The only damages payable under New South Wales law for a work injury damages claim are economic loss damages, i.e. past and future wage loss and past and future superannuation loss. There are no damages payable for non-economic loss (pain and suffering), medical expenses, or domestic care. Payment of those benefits are restricted to the statutory compensation scheme.
Most work injury damages claims are prosecuted with the assistance of an expert’s report on liability. This means engaging the services of an expert, e.g. engineer or ergonomic or safety expert to provide a report on the unsafe symptoms of work that contributed to your injury.
The work injury damages system is a front-end loaded system, i.e. all of your evidence should be in and served before or with the Pre-filing Statement.
Once a work injury damages claim for damages is settled all rights to compensation under the Act cease. It is therefore important that all surgery is completed and you have fully recovered from that surgery before attempting to negotiate a resolution of a work injury damages claim. Damages are not taxable. Legal costs are partially covered by scale costs available under the Workers Compensation Regulation. The scale amount of costs does not normally cover all of the solicitor/client costs in prosecuting these types of claims.
Most workers’ compensation claims prosecuted under New South Wales law have their legal costs covered by the WorkCover Independent Review Office (WIRO) under the Independent Legal Assistance and Review Service (ILARS) Scheme. ILARS pays an injured worker’s legal and associated costs of making a claim for compensation and provides funding for representation before the NSW Workers’ Compensation Commission.
Attwood Marshall Lawyers are fully accredited with ILARS to provide representation in NSW workers compensation matters. A solicitor must hold ILARS accreditation in order to receive funding under the scheme. If your solicitor is not accredited with ILARS they cannot claim your legal costs through the ILARS system.
ILARS provide funding to represent cases for:
- Weekly payments;
- Medical treatment expenses;
- Claims for lump sum payments for permanent impairment;
- Return to work issues; and
- Appeals from decisions of the Workers Compensation Commission.
For police officers, paramedics and fire fighters together with bush fire fighters and emergency service volunteers and coal miners, costs are paid by the workers’ compensation insurer upon successful completion of the matter.
These claims are essentially conducted by solicitors on a “no win no fee” retainer. Attwood Marshall Lawyers also represent clients on this basis. The benefits payable under the Act for police officers, paramedics, fire fighters, bush fire fighters and emergency service volunteers are more generous than those available to ordinary workers under New South Wales law.
Coal miners are covered by their own separate scheme for cases litigated before the District Court. In those cases provided the claim is successful legal costs are also paid by coal miners’ insurance.