Read Claims and benefits: Fact Sheet 4 text version




This fact sheet answers questions about how to make a claim for workers compensation and what benefits a worker may be entitled to if the claim is accepted. WHO CAN MAKE A CLAIM FOR WORKERS COMPENSATION? A person who is a `worker' or `deemed' to be a worker under the Workplace Injury Management and Workers Compensation Act 1998 is eligible to claim workers compensation if they suffer a work-related injury. A worker includes: · those who work for an employer, under an oral or written contract of service or apprenticeship · `deemed' workers, such as outworkers, taxi drivers, entertainers, sales representatives, jockeys and some contractors · full-time, part-time or casual workers. HOW DOES AN INJURED WORKER CLAIM WORKERS COMPENSATION? Before making a claim, the injured worker or their representative must advise the employer that an injury has occurred, and provide medical information. An injured worker does not, in most cases, need to send a written claim form to the insurer to receive workers compensation. Once the insurer has been told of an injury (by the employer, the worker or a third party), the following will occur: · provisional liability payments may start within seven days or the insurer will advise the worker why the payment will not commence ­ notification of a `Reasonable Excuse' · the insurer will investigate the facts and decide to either continue or stop further payments. Most of the information that the insurer needs to make a decision about workers compensation will be available from the employer, the worker and the treating doctor. There are occasions, however, when a worker will need to submit a written claim form, such as: · if a reasonable excuse was issued by the insurer and continues to exist · if the injury occurred more than two months before the insurer is notified · if provisional liability has expired and there is insufficient information to determine liability · if an injury notification is made but the insurer has insufficient information to determine liability. In these circumstances, the insurer will advise the worker that a claim form is required. Claim forms are also available from the WorkCover website. HOW DOES THE INSURER DECIDE WHETHER TO ACCEPT THE CLAIM? Before provisional liability payments begin or a claim is accepted, the insurer requires certain facts. In considering the matter the insurer may contact the employer, the worker and the treating doctor. Under the Worker' Compensation Act 1987, a person is only entitled to workers compensation if: · the person is a `worker' or a `deemed' worker · the injury is work-related ie work was a substantial contributing factor to the injury, and · the person is covered by NSW workers compensation legislation. HOW SOON MUST THE INSURER MAKE A DECISION ON THE CLAIM? Within seven days of being informed that an injury has occurred, the insurer must begin provisional liability payments to the injured worker (unless there is a reasonable excuse to not start payments) and advise how long provisional liability payments will continue, up to a maximum of 12 weeks. If, following the initial notification of injury and commencement of provisional liability payments, a claim form is submitted, the insurer has 21 days from this date or until the period of provisional liability expires to decide on liability.

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IS THERE A TIME LIMIT FOR MAKING A WORKERS COMPENSATION CLAIM? A claim for workers compensation should be made within six months of the date of the injury. In special circumstances this can be extended to three years. Occupational diseases such as exposure related conditions can be treated differently from this. WHAT BENEFITS ARE AVAILABLE TO INJURED WORKERS? Depending on the type, nature and severity of the injury, an injured worker may be eligible for all or some of the following payments: · weekly benefits · medical or related treatment · occupational rehabilitation services · hospital treatment · travel expenses to attend appointments for medical and other treatment · lump sums for permanent impairment · lump sums for pain and suffering · vocational re-education and retraining, work aids and equipment, and work trials. When an injury results in the death of a worker, the death benefit entitlements may include: · a lump sum payment · weekly payments to dependants · reasonable funeral expenses. WHAT WEEKLY WORKERS COMPENSATION PAYMENTS ARE AVAILABLE TO INJURED WORKERS WHO ARE TOTALLY UNFIT FOR WORK? For the first 26 weeks that a worker is totally unfit for work (total incapacity), the workers compensation payments are at the award rate or enterprise agreement rate of pay, capped at a maximum weekly amount. Overtime, shiftwork, payments for special expenses and penalty rates are excluded. For casual workers not employed under an award rate, workers compensation payments are based on what the worker earned over the past 12 months. Beyond 26 weeks of total incapacity, the workers compensation payments are at the statutory rate, which varies if the worker has a dependent spouse and/or children. The statutory rate is adjusted in April and October each year to reflect movements in wages. The amount currently payable can be found in the WorkCover benefits guide, which is published on the WorkCover website.

WHAT WEEKLY BENEFITS DOES AN INJURED WORKER RECEIVE WHEN THEY RETURN TO WORK ON SUITABLE DUTIES? If a worker returns to work on suitable duties and earns less than before the injury ­ because they are working part-time or the suitable duties are at a lower pay rate than their pre-injury job ­ an additional amount, or `make-up' pay, will be paid. If the worker is earning less money, their total weekly `wage' will be made up of: · the value of the duties worked that week, paid by the employer, plus · `make-up' pay, or section 40 benefits, paid by the insurer as workers compensation. `Make-up' pay is the difference between the worker's normal gross weekly wages before the injury (including overtime, shift work, payments for special expenses and penalty rates) and the actual weekly earnings after the injury (ie the value of the duties worked). The amount of `make-up' pay is limited to the award rate (capped at a maximum amount) for the first 26 weeks post-injury and to the statutory rate for any weeks of partial fitness for work beyond 26 weeks. WHAT WEEKLY BENEFITS DOES AN INJURED WORKER RECEIVE WHEN THEY ARE FIT TO RETURN TO SUITABLE DUTIES BUT NO DUTIES ARE AVAILABLE? If there are no suitable duties available from the employer and the worker is involved in rehabilitation, retraining or job-seeking, they may receive section 38 payments, which are calculated at: · the award rate of pay within the first 26 weeks of incapacity · 80 per cent of the award for the remaining period up to a maximum of 52 weeks. HOW DOES AN INJURED WORKER MAKE A CLAIM FOR PERMANENT IMPAIRMENT? If an injury results in permanent impairment, a worker may be entitled to receive a payment under the Workers Compensation Act 1987. If an insurer believes this is the case, the insurer must initiate an assessment of permanent impairment. Alternatively, a worker may lodge a claim for permanent impairment with the insurer. A medical report that gives an assessment of permanent impairment must be enclosed with the claim. The assessment will be expressed as a percentage impairment of the whole person for injuries on or after 1 January 2002.

If the insurer is satisfied with the medical report, it may settle the claim for permanent impairment (including any entitlement for `pain and suffering'). If they disagree with the assessment, the insurer may seek clarification from the doctor who completed the report or require the worker to have an independent medical examination. If the insurer makes an offer less than the amount claimed, the worker or their representative may lodge an Application to resolve a dispute with the Workers Compensation Commission. For injuries before 1 January 2002 · Payments for any permanent loss of efficient use are determined according to the Table of Disabilities. · In order to receive a payment under section 66 of the Workers Compensation Act 1987, the minimum level (or threshold) of permanent loss must be 1 per cent or more for a given body part or system, but a minimum of 6 per cent for permanent hearing loss. · If the claim for permanent loss was made before 12 January 1997, the most a worker can receive is set out in the WorkCover benefits guide and is dependent on the date of the injury. · If the claim was made on or after 12 January 1997, the most a worker can receive for a permanent loss is: ­ for a single permanent loss ­ for a multiple permanent loss $100,000 $121,000.

· A minimum level of permanent impairment must be present before compensation payments are made. For physical injuries, the minimum level is 1 per cent or greater of the whole person. · For permanent psychiatric/psychological impairment there is a 15 per cent threshold. · For hearing loss claims, a minimum level of 6 per cent binaural hearing loss must be present. · For injuries occurring from 1 January 2006, an additional 5 per cent is payable for spinal injuries that result in permanent impairment. · Permanent impairment lump sum benefits were increased by 10 per cent for injuries occurring from 1 January 2007. · The current (May 2009) maximum permanent impairment lump sum payable is $231,000. · An injured worker may also have access to `pain and suffering' payments under section 67 of the Workers Compensation Act 1987, if 10 per cent or more permanent impairment is present. The maximum amount payable for pain and suffering is $50,000. For more information on the evaluation of permanent impairment, refer to the WorkCover Guides for the evaluation of permanent impairment, or visit the WorkCover website. DOES AN INJURED WORKER HAVE ACCESS TO COMMON LAW DAMAGES? A Work Injury Damages (common law) claim is made when an injured worker sues their employer for negligence. To be eligible to take this action, three criteria must be met: · the worker must demonstrate negligence of the employer or a fellow employee · the injured worker must have received compensation for permanent impairment that is at least 15 per cent whole person impairment · the claim cannot commence for at least six months after the worker gave notice of the injury to the employer, or not more than three years after the date of injury. Initially, the Workers Compensation Commission attempts to mediate and reach settlement through discussion and agreement of all parties. If agreement is not reached or liability is denied, the claim proceeds to the District Court. Damages are paid as one lump sum, to cover past and future economic loss only. They can be reduced if the worker's own negligence contributed to the injury. The settlement cancels all other entitlements to workers compensation benefits. If a Work Injury Damages claim is not successful, the worker may continue to receive workers compensation under the statutory scheme.

· An injured worker may also have access to `pain and suffering' payments under section 67 of the Workers Compensation Act 1987, if the worker is entitled to 10 per cent of the maximum payable under the Table of Disabilities. The maximum amount payable for pain and suffering is $50,000. For injuries on or after 1 January 2002 · The degree of permanent impairment is assessed using the WorkCover Guides for the evaluation of permanent impairment (catalogue no. WC00970). The guides have been developed to ensure that evaluations are consistent and fair. They are used to measure permanent impairment of the affected body part(s) and system(s), from which a percentage of permanent impairment in relation to the `whole person' is calculated. A lump sum benefit is determined by reference to the formula in section 66 of the 1987 Act. · Evaluations of permanent impairment can only be conducted by a suitably qualified medical specialist who is trained in the use of the WorkCover Guides for the evaluation of permanent impairment and is listed on the WorkCover website The medical specialist performs an examination of the worker, reviews the medical records and uses the Guides to ensure that the degree of permanent impairment is reliably measured.

WHAT IS A COMMUTATION? A commutation is an injured worker's entitlement to workers compensation benefits, paid out as a lump sum of money. A commutation is only available under the following circumstances: · the injured worker must have a permanent impairment that is at least a 15 per cent whole person impairment · compensation for permanent impairment of that injury and pain and suffering has been paid · the worker must be entitled to ongoing weekly benefits and must have received weekly benefits regularly and periodically during the previous six months · it is more than two years since the worker first received compensation for the injury · all opportunities for injury management and return to work have been exhausted · weekly benefits have not been stopped or reduced as a result of the worker not cooperating with the injury management plan · the worker's lawyer certifies that the worker has received independent financial advice · the insurer and worker must agree to the commutation and to the amount · WorkCover must approve the commutation · the Workers Compensation Commission registers the commutation. Once a worker accepts a commutation they are not entitled to any further workers compensation benefits for those workplace injuries for which they received the commutation.

KEY POINTS The process for making a claim for workers compensation is simple. The worker notifies the employer of an injury and the employer notifies the insurer, who considers the facts and begins provisional liability payments or advises the worker why they will not commence payment. If the claim is accepted, further benefits are paid to the worker in accordance with medical certification. The insurer may request the worker to fill in a claim form, if they do not have sufficient information to determine the claim. More information on claims and benefits is available from: · WorkCover website · WorkCover Assistance Service on 13 10 50.

Disclaimer This publication may contain occupational health and safety and workers compensation information. It may include some of your obligations under the various legislations that WorkCover NSW administers. To ensure you comply with your legal obligations you must refer to the appropriate legislation. Information on the latest laws can be checked by visiting the NSW legislation website ( or by contacting the free hotline service on 02 9321 3333. This publication does not represent a comprehensive statement of the law as it applies to particular problems or to individuals or as a substitute for legal advice. You should seek independent legal advice if you need assistance on the application of the law to your situation. © WorkCover NSW

Catalogue No. WC01293 WorkCover Publications Hotline 1300 799 003 WorkCover NSW 92-100 Donnison Street Gosford NSW 2250 Locked Bag 2906 Lisarow NSW 2252 WorkCover Assistance Service 13 10 50 Website

ISBN 1 920730 28 1 © Copyright WorkCover NSW 0909


Claims and benefits: Fact Sheet 4

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