Any worker who sustains an injury whilst performing their work duties may be entitled to make a claim for workers compensation. Permanent and casual workers alike can lodge a workers’ compensation claim. “Deemed” workers and self-employed workers can also potentially lodge a claim as all employers in NSW are required to have compulsory workers compensation insurance for employees in their workplace.
To claim compensation for a work injury, you do not have to prove negligence as the workers compensation legislation is a ‘no-fault’ scheme. All you have to establish is that you sustained an injury in the course of your employment and such employment was a substantial contributing factor to your injury. However, it is important to see a lawyer or solicitor to ascertain all your rights and entitlements to damages and compensation.
Often it is argued by insurers that the worker failed to notify their employer of the injury at the time and therefore it is important that you inform your employer in writing as soon as practicable after your injury.
The main heads of damages available to an injured worker are:
If you are successful in establishing ongoing incapacity, you are entitled to payment of wages. Weekly payments are now structured to support you to return to work. They provide a higher rate of weekly payments during the first 13 weeks of incapacity (when around 80 per cent of injured workers return to work). Thereafter, the scheme is designed to provide workers with an incentive to return to work as soon as possible.
The new entitlements are dependent on:
- the period (in aggregate weeks) for which you have been receiving weekly payments
- your capacity for work – as assessed by the insurer – and your work status.
Weekly payments for new claims are now based more closely on your real earnings prior to injury – incorporating overtime and shift allowance in the initial 52 weeks of weekly payments.
For the first 13 weeks of weekly payments, you will receive up to 95 per cent of your pre-injury earnings.
In weeks 14–130, your weekly payments will be made up to 95 per cent of your pre-injury average weekly earnings if you return to work for at least 15 hours a week. Otherwise, you will receive up to 80 per cent.
After 130 weeks, if you have capacity to work but are not working at least 15 hours a week and earning at least $155 per week then your weekly payments will cease. If you are working at least 15 hours and earning at least $155, or have no capacity to work, your weekly payments will continue at 80 per cent of your pre-injury earnings.
For most workers, weekly payments are limited to a maximum of five years from the date of your claim (or when you reach retirement age, if that is sooner – at which stage you may receive commonwealth benefits).
Lump sum compensation:
You are entitled to receive a lump sum based on any whole person impairment due to the disability flowing from your injury.
Such permanent impairment can only be assessed when the doctors are certain that your condition is permanent and stable. This payment which is under s.66 of the Act does not affect your other rights under the Act.
There is a threshold that needs to be met before attracting the lump sum component of the Act. If you made your claim on or after 19 June 2012 (for an injury that occurred on or after 1 January 2002) you are entitled to a lump sum payment for permanent impairment if you are assessed as having permanent impairment greater than 10 per cent.
For psychiatric and psychological injury claims, the minimum level is 15 per cent permanent impairment.
For a given injury, you are only able to be assessed once for degree of permanent impairment and to claim once for a lump sum payment for permanent impairment. This can sometimes present legal pitfalls and complications which require expert advice to properly prosecute your claim.
Medical and Rehabilitation Expenses:
Hospital, pharmaceutical and treating expenses – we are only able to claim these expenses on your behalf if you keep documentation of these expenses. Accordingly, every time you pay for a script at your chemist, physiotherapy, x-ray or any other expense, you should obtain a receipt and provide the receipts to our office at regular intervals during your claim.
Your reasonably necessary medical and related expenses may be covered for up to 12 months after you cease to be entitled to weekly payments (or 12 months after you made your claim if you do not receive weekly payments). If you are ‘seriously injured’ (more than 30% whole person impairment) however, this 12 month limit does not apply. Aside from treatment or services provided within 48 hours of your injury – and certain other exemptions – you must get prior approval from the insurer that the treatment or service is reasonably necessary in order for you to claim it as a medical or related expense.
Travel & Incidental Expenses:
Travelling expenses to and from treatment providers – These expenses are difficult to claim and must be fully and accurately documented. You should retain train and bus tickets, if possible, or a diary of when you attend doctors, the mode of travel and the name of stations and/or stops. If travelling by car, you should keep notes of the dates, the person whom you consult and the distance travelled.
You may also be entitled to compensation for domestic home care and assistance depending on the level of your disabilities and your requirements for such gratuitous or paid services.
Compensation for the Death of a Worker
Lump sum compensation may also be payable for a work-related death.
The insurer, when notified of the death, should write to the worker’s family or the family’s legal representative to advise compensation may be payable. As soon as the insurer has determined liability the family or legal representative will be advised.
In the event the insurer accepts liability for a work-related death, dependants of a worker are entitled to a lump sum payment (approximately $900,000.00 as at 2023) weekly payment and funeral expenses.