Have you been injured at work or as a result of work?

Ask yourself these questions.

1. Are you worried about the effect of the injury on your future earning ability?
2. Are you worried about how you will pay the medical bills, especially any gap payments and non-Medicare treatments (physiotherapy etc)?
3. Do you know the five common ways injured workers get cheated out of workers’ compensation entitlements?

If you answered yes to 1 or 2 or no to 3 then you may need legal assistance.

Your employer is required to register with Workcover to insure against possible claims for workers’ compensation for injuries. If you are injured at work or as a consequence of work you may be entitled to weekly payments for your wages, medical expenses and a lump sum payment

If you do not understand the Workcover system and your rights under that system you will be at a disadvantage. By understanding your entitlements and how to fight for them you will be able to avoid missing compensation you are entitled to claim or being forced to accept the insurance company’s word that you are being paid all that is owed to you.

For instance, do you know that, while the workers’ compensation insurer may say you are not entitled to overtime payments, a careful analysis of your overtime may produce a pattern that would allow such compensation. Insurance company’s lie by omission in other areas too. Knowing what to look out for and how to dispute a decision can be invaluable to you. 

OVERVIEW

You must establish two things to be entitled to WorkCover:

• That you are a worker.
• That you sustained disability/injury.

WHO IS A WORKER

Workers

Workers include all employees. If you are unsure as to whether you are an employee (for example PAYE tax is not deducted from your earnings, your employer says that you are not, you are a contractor, or you provide some of your own tools) then the Workers Compensation Tribunal may have to determine whether or not you are a worker. This is a complex area of the law and detailed legal advice should be obtained.

Contractors

Self-employed contractors in some industries (building, cleaning, transport, taxi and entertainment) and some volunteers are deemed to be workers. These contractors are generally only covered if the work was not for domestic purposes, is performed personally by the contractor who does not employ anybody else to perform that part of the work and in the case of the building work there is a limit regarding the supply of materials.

DISABILITY/INJURY

Physical Injuries

To be eligible for compensation you must have a disability. This means a physical injury, disease or disfigurement and includes an aggravation or exacerbation of a pre-existing injury or disease whether the employment was a contributing factor. Expert medical and legal advice may be required in this area. 

Stress Claims

Compensation will only be paid for an illness or disorder of the mind caused by stress if work is a substantial cause and the disability was not wholly or predominantly due to an identifiable and reasonable decision or action of the employer.

WorkCover insurance companies routinely reject stress claims. A carefully prepared medical and factual case can successfully overturn the rejection.

Death

Where a worker dies as a direct or indirect result for compensable injury the worker’s dependents may make a claim for compensation. This will include a lump sum plus weekly payments for dependents plus funeral expenses.

Journey Accidents and Injuries not at Work

Generally the compensable injury must be sustained either at work or as a result of work.

Injuries sustained in usual journeys to and from work and home are excluded in most cases. It is likely that a worker will not be covered for any injury until actually arriving at work. Again this is a complex area of the law and requires detailed legal advice especially where it may not be possible to bring an action for injuries sustained in a motor vehicle accident.

SUMMARY OF THE LAW RELATING TO REGULAR ENTITLEMENTS

If your claim for workers compensation is accepted, you are entitled to WorkCover benefits.

Weekly Payments

If you are totally incapacitated for work as a result of a disability, you are entitled to weekly payments of compensation. This includes lost income from a second job. If you are partially incapacitated for work you should be paid the difference between what you were earning and what you are now earning. If you are partially incapacitated for work and you cannot find work, you will be entitled to full payments for the first year and 80% for the second year.

Weekly payments should equal the average weekly earnings but allowances such as tool allowances, site allowances and occasional or irregular overtime payments are not included.

If you are covered by an Industrial Award or Agreement at the time of your incapacity you cannot receive less than the weekly entitlement under that Award or Agreement.

You are entitled to wage indexation rises on an annual basis or any increases in Awards or Industrial Agreements.

Medical Expenses

All medical expenses reasonably incurred will be paid by the insurer for the duration of the disability whether or not you are working. These expenses include treatment costs and hospital, doctors’ fees and fees of allied professionals such as dentists, physiotherapists, chiropractors and speech pathologists. Other treatment provided such as counsellors, massage therapists and naturopaths will only be covered if WorkCover gives approval.

Other services such as gym membership or home modifications may be covered if they assist your rehabilitation.

You can claim the reasonable costs of travelling to medical treatments.

WorkCover cannot determine which doctors can treat you but it can request that you attend a medical examination.

Rehabilitation

Rehabilitation is a key point under the Workers Rehabilitation and Compensation Act. You are entitled to reasonable rehabilitation and should request that the insurance company appoint a rehabilitation provider.

MAKING A CLAIM

Reporting the Injury

Time limits apply to making a claim so you must report the injury as soon as possible to someone in authority at your place of work. The Notice of your injury must be given within six months of the date of the injury although this time can be extended.

The Claim Form

You should complete an official form called a Notice of Disability and Claim for Compensation form. This should be submitted as soon as possible to your employer. The employer should sign the form. The claim form must be submitted with a medical certificate from the doctor.

Can I be paid whilst the insurer decides my claim

If there is a delay in the determination of your claim you can ask for interim weekly payments. If your claim is successfully rejected then you will be required to repay the interim payments. If your claim for compensation is rejected then WorkCover will not continue interim payments.

What happens if my claim is accepted

When liability is accepted by the insurer you will receive your normal weekly payments either from your employer or in some cases the insurer may pay you direct.

Even if your claim is accepted you should seek the advice of a solicitor to ensure that the payments are being paid at the correct rate.

The insurer will also pay reasonable medical, hospital and pharmaceutical expenses.

What if there is a delay in accepting my claim

The insurer should decide whether to allow your claim within 14 days of receiving it. If you think there are unreasonable delays occurring then an application may be made to the Workers Compensation Tribunal by way of an application known as an Application for an Expedited Determination. The Workers Compensation Tribunal has power to give directions or to make appropriate decisions to accept or reject your claim.

What if my claim is rejected

If your claim for compensation is rejected by the insurer or a decision is made that you are not happy with, then you can dispute the decision by lodging a Notice of Dispute with the Workers Compensation Tribunal within 28 days of the date of the decision. This time limit must be complied with although you can get an extension of time for lodging a late Notice if you have a good reason/excuse for the late application.

ENDING WEEKLY PAYMENTS

The Workers Rehabilitation and Compensation Act strictly controls the circumstances in which the insurer can stop your weekly payments. In most cases WorkCover must give 21 days notice and in all cases they must give you written notice setting out your right to dispute the decision.

Weekly payments of compensation can only stop if:

• You agree.
• You resign your job with the employer.
• You are no longer incapacitated for work.
• You do not have a medical examination or provide a medical certificate when asked.
• You have returned to work (not just for a trial or rehabilitation).
• You refuse to undergo treatment or rehabilitation programmes in certain circumstances.
• You leave Australia without giving appropriate notice.
• You have a permanent disability and incapacity and you agree with WorkCover for a lump sum payment.
• You go to live interstate,without getting permission from Workcover.
• WorkCover successfully apply the two year review provision – the two year review provision is a complicated changing area of Workers Compensation law. In summary, after two years of incapacity, the insurer can assess your ongoing entitlement to weekly payments by deducting wages you could earn (not the wages you are necessarily earning) in suitable employment. This is a complex and developing area of Workers Compensation law and you should seek detailed legal advice on your entitlements.

If WorkCover serves a Notice on you to stop your payments and you dispute the decision, then your payments continue until the Workers Compensation Tribunal finally decides your dispute.

If Workcover serves a notice on you to stop or reduce your weekly payments it is recommended that you seek legal advice as this is a constantly changing area of Workcover law.

LUMP SUM PAYMENTS

Section 43 Lump sums

Lump sum payments are now only paid for non-economic losses arising from permanent disabilities or ongoing problems. These payments cannot be used to finalise claims for weekly payments or medical expenses.

Section 43 lump sums are not paid for stress cases if there are no physical problems.

If you are only temporarily incapacitated for work and return to work with no permanent disability or ongoing problems you will not have a claim for a Section 43 lump sum.

You may have a permanent disability although suffer from no ongoing incapacity for work (for example an office worker who loses a finger but is capable of returning to pre-injury employment) - you will still be entitled to a lump sum for loss of the finger.

The amount to be paid for the lump sum is usually calculated according to a schedule in the Act. Each loss of function resulting from any compensable disability is separately compensated for but subjected to a reducing formula for subsequent disabilities.

Detailed medical assessments are required for Section 43 assessments. You should seek specialist legal advice as well as ensuring that you are assessed by a qualified medico-legal assessor. Mistakes in this area cost thousands of dollars and this is one of the ways in which the insurance company can cheat you out of your entitlements.

Death Claims

Dependents of a deceased worker will be entitled to a lump sum benefit.

Redemption Payments

Lump sums to settle all aspects of your compensation claim can be paid to finalise your claim forever. There are many hidden traps that need to be considered in accepting a redemption payment. This is a complex and changing area of Workers Compensation law and you should seek specialist legal advice before any discussions or negotiations start. If you commence the negotiations with the insurer and later seek legal advice, you may have made binding agreements which prejudice you.

The insurer cannot force you to take a redemption lump sum and you cannot force them to give you one – a Court or Tribunal has no power to make a decision for either party as redemption’s can only be made by agreement.

There are many taxation and Centrelink implications associated with taking lump sums which will require detailed advice.

DISPUTING A DECISION

If a decision is made that you are not happy with, for example the rejection of your claim, acceptance of your claim only for a limited period, incorrect weekly payments, no allowance for overtime, refusal to pay medical expenses or a Section 43 assessment that is too low, (and there are many other examples,) then you can dispute the decision by lodging a Notice of Dispute with the Workers Compensation Tribunal within 28 days.

Once the Notice of Dispute has been lodged, the insurer has 10 days to reconsider the decision. At the end of that time they must either confirm, vary or withdraw the decision. If you are not happy with the variation or withdrawal of the decision, you can lodge a Notice of Dissatisfaction with the Workers Compensation Tribunal. You have only 10 days to do this and should do it straight away.

When the decision is confirmed or you have lodged your Notice of Dissatisfaction, your matter is then referred to a Conciliator for a Conciliation Conference.

If your matter does not resolve at the conciliation conference then it is referred to the next stage of either Arbitration or Judicial Determination. At this stage you should seek detailed legal advice if you have not already done so. 

It is recommended that you have legal advice at the conciliation conference. If you have reached the stage of the conciliation conference, it is clear that the insurer is determined to maintain its decision. The insurers employ their own solicitors and regularly engage large defendant legal firms to act for them. All claims agents receive regular training and are skilled in the ways of defeating claims.

FIVE WAYS INSURANCE COMPANIES CHEAT INJURED WORKERS

Five common ways injured workers get cheated out of their workers compensation benefits they are entitled to.

1. Failure by the insurance company to reimburse for travel costs and prescriptions.

Travel reimbursement for travel from your doctors and other treatment from your home is a little known benefit that the insurance company is unlikely to tell you about. Initially the costs associated with this may seem small but as you are having to travel from one side of town to the other to visit many doctors, and later if your payments are reduced to 80%, it soon becomes a significant cost.

You are also entitled to be paid for all medical supplies and prescriptions. You should submit all receipts.

2. Failure to pay benefits at the correct time.

The employer or insurer is required to pay you your weekly payments on a regular basis. If there is a delay in the payment you are entitled to interest.

3. Failure to offer interim payments.

If there is a delay in making a decision about the acceptance of your claim for compensation, you can request that the insurer pay you interim payments - they are not required to do so. Often insurance companies do not offer the interim payments in the hope that you will return to work quickly and your claim for compensation can be accepted for a closed period.

4. Low assessments for Section 43 assessments

The calculation and rating of a permanent disability is very complicated. The insurance company will tell you what they want you to know. They will rarely tell you that the same disability can be rated in a number of different ways and there is a wide variation between doctors as to the percentage assessments. The insurance company is unlikely to give you the names of doctors who are more generous in their assessments. The insurance company is also unlikely to tell you that the same injury can be assessed as different parts of the body.

For example, an injury to the shoulder can either be assessed as a shoulder injury or as an arm injury. If the percentage assessment is 20% in both cases, then in 1995 the amounts to be paid would have been as follows:

(a) assessed as a shoulder injury - $10,500.00;

(b) assessed as an arm injury - $18,900.00.

5. Failure to pay overtime payments.

Insurance companies routinely do not pay overtime payments. Careful analysis of any overtime you may have worked will, in many cases, reveal a pattern that will entitle you to increased payments.