8 things you should know about Workers’ Compensation

Workers’ Compensation Claim

October 11, 2019


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1. You don’t have to Prove your employer was at fault

In NSW, the Workers Compensation system is what is called a ‘no fault’ scheme. This means that if you suffer a work related injury and ‘work was a substantial contributing factor’, then you are covered whether your employer was at fault or not. Many people who call our Workers Compensation lawyers feel that they need to prove that their employer was negligent. However, in order to make a workers compensation claim, and receive statutory benefits, this is not the case.

It is only if you reach certain thresholds of injury (15% Whole person impairment – or greater) that you may be eligible to make a Work Injury Damages claims. These claims require you to establish that your employer was negligent.

If you would like to discuss your workers compensation claim – or Work Injury Damages claim, don’t hesitate to contact our workers’ compensation lawyers. 

2. Your legal costs for your Workers Compensation won’t need to be paid for by you

A workers compensation claim won’t cost you a cent in legal fees. Fortunately, as a result of some legislative changes in 2012 you can now have your workers compensation costs completely covered by the Workers Compensation Independent Review Office (WIRO). As our Workers Compensation lawyers are WIRO approved, this means we don’t need to charge you anything.

When you instruct us in a Workers Compensation, we are able to put in an Application to receive ILARS (Independent Legal Assistance and Review Service) funding for your case. Subject to approval, this funding includes payment of both your legal fees and the disbursements to run your case which could include, for instance, medical reports and clinical notes. 

3. There is a procedure for running claims under the Workers Compensation Act and Disputes are heard in the Workers Compensation Commission

After you lodge a claim, the Workers Compensation Legislation prescribes a procedure for dealing with claims. Generally, upon lodging a claim, the insurer will determine whether they believe they are liable for the claim. If they admit liability, it means you may have an entitlement to the various benefits under the act including: 

  • Weekly payments for loss of income
  • Medical expense
  • Lump sum claims

A Lawyer can even ask for funding from WIRO to assist you in lodging your claim!  Once liability is determined, a number of ‘disputes’ can arise. Firstly, the insurer could deny liability based on a number of ground. These include –

  • They say that there is no injury; and/or
  • They say that if there is an injury, it was not caused by work
  • They could deny that the person was a ‘worker’ within the meaning of the act
  • If it’s a psychological injury, they could allege that the injury was caused by ‘reasonable’ action taken on behalf of the employer such as, for instance, with respect to ‘demotion’ ( as per section 11A)  

Secondly, even if the insurer accept liability for your injury, they could deny that you have entitlements. That is, you could have a ‘dispute’ about your entitlement to weekly benefits based on an argument around your capacity to work. You could have a ‘dispute’ with respect to your entitlement to a lump sum claim. 

The Workers Compensation legislation prescribes that these ‘disputes’ be heard in the Workers Compensation Commission using an ‘Application to Resolve a Dispute’. Once an Application to Resolve a Dispute has been filed, the claim will be referred to an Arbitrator and a telephone conference will be conducted with all parties present. Sometimes the claims can settle here – but often they are referred to an Arbitration where an arbitrator will determine the ‘dispute’. Some claims involve multiple disputes throughout their lifeline. For instance, the insurer may initially deny liability, and if that is determined in favour of the Worker, they may subsequently deny that the Worker is entitled to lump sums. As Workers Compensation lawyers, we have seen some claims go through the commission multiple times.

4. Many cases settle

In our experience, if cases are properly prepared, most will settle for a favourable outcome to the worker. Resolution can sometimes involve compromise – but crucially, it buys certainty. There is always some risk, even with very strong cases, that an arbitrator can provide an unfavourable result to a Worker. Whilst we’re more than willing to run cases, it is our view, and generally, the view of the Workers Compensation commission that settlement should always be explored. As such, based on our experience, we can say that most cases settle.

5. Workers Compensation claims are low risk as you don’t have to worry about an costs order against you if you lose

In some kinds of other compensation cases, even if you have a lawyer who acts on a ‘no win no fee basis’ there can still be a risk that you could lose your case, and have a costs order for the other insuer’s legal costs against you. This means that you could be left with an order against you for tens of thousands of dollars – and sometimes much more. However, Workers Compensation claims are not like this. Even if you lose your case, you won’t be ordered to pay the insurer’s legal costs. The only time you could have the potential to pay the insurer’s legal costs is in respect of Work injury damages claims where you sue your employer in negligence. These cases are filed in the District or Supreme Court. However, for statutory workers compensation benefits in the Workers compensation commission, you cannot be ordered to pay the other side’s legal costs.

6. You can claim for both Psychological and Physical Injuries

Whether you have a physical or psychological injury –  as long as your injury has been caused by your work, you are able to make a claim. In relation to psychological injuries, there are a few additional hurdles. One of these include the fact that the insurer can, and often will plead that your injury has been caused by ‘reasonable action of your employer’ which is a defence to claims under section 11A of the Workers Compensation Act.

Nevertheless, you are able to make claims in respect of physical and psychological claims – both of which give rise to potential entitlements.There are a few additional rules which you can seek legal advice with respect to. For instance, if you suffer a physical injury and a psychological injury out of the same incident, you would certainly want to obtain legal advice as the manner in which lump sum claims function in this respect can be complicated.Furthermore, injuries don’t need to be out of the one event. Injuries, including psychological injuries can be diseases, or arise out of the nature and conditions of your work. Again, the way in which these injuries need to be particularised can be complicated and it is best to consult a Lawyer to assist you with claims of this nature.

7. If you have sustained an injury, you may be entitled to compensation for the following:

Weekly payments or Loss of income

When you are off work because of an injury, you are entitled to receive weekly payments of up to 95% of your pre-injury earnings. Under the new legislation that was implemented in 2012, an injured person can receive weekly entitlements for up to 2.5 years and for serious injuries, up to 5 years or until retirement age. The amount and duration that one can receive weekly benefits for depends on a number of things including how serious your injury is, and whether you have any capacity to work. If you were injured before or after the introduction of the new Workers Compensation Legislation in June 2012, what you can receive will fall under the new system of benefits:

  • For the first 13 weeks after your injury you are entitled to 95% of pre-injury average weekly earnings (PIAWE)
  • After 13 weeks you are entitled to 80% of your PIAWE if you have no current work capacity, 80% of your PIAWE less your ‘ability to earn’ if you are able to work and not working, or up to 95% of your PIAWE less your current earning if you are working at least 15 hours per week.
  • After 2.5 years you are able to receive 80% of your PIAWE if you have no current work capacity and this is likely to continue indefinitely, OR continue up to 95% of your PIAWE less your current earnings if you are working at least 15 hours per week and this is likely to continue indefinitely.
  • After 2.5 years, if you are certified to do some work however have not returned to employment, it is likely the insurer will try to cut you off all weekly entitlements.
  • To receive weekly benefits beyond 5 years, you must be classified as a “seriously injured worker”.

Medical treatment

After suffering an injury, the workers’ compensation insurer is responsible to pay for all of your reasonably necessary medical treatment. This includes radiological scans, GP and specialist appointments, physiotherapy, hydrotherapy, surgeries, and medications. You are also entitled to claim the cost of your travelling expenses in attending medical and rehabilitative treatment.

Lump sum compensation for permanent impairment

As a result of your injury at work you may be left with permanent disabilities and not able to do the things you used to do. Should you be left with ongoing impairment, we are able to investigate the possibility of making a claim for lump sum compensation, and in some limited circumstances, also for pain and suffering.If you have lasting effects from your injury, we are able to have your condition assessed for lump sum compensation.  This generally happens once your condition has stabilised and treatment options have been exhausted. You will be required to see a Doctor who is qualified to assess under the Workers Compensation Guidelines. They will provide you with a Whole Person Impairment (WPI) which will be expressed as a percentage. You should have a lawyer run claims of this nature as you may be able to only claim lump sum compensation once and therefore it needs to be maximised given it can have effects on other entitlements (such as the payment of weekly payments after 5 years and the ability to sue your employer in negligence) If you have sustained an injury, you may be entitled to compensation for the following:

8. You can only sue your employer if you reach a certain threshold of injury

As indicated, in order for ‘negligence’ to become relevant in a workers compensation claim, a worker needs to have a whole person impairment of 15% or greater. This is a very high threshold to meet. However, if it is met, a worker has the option to sue their employer in negligence for a lump sum reflecting all past and future economic loss that they will suffer as a result of the injury. If you have an injury that meets this threshold you should have a lawyer with expertise in Work injury damages claims running you case.