All employers are required to carry workers’ compensation insurance. Therefore, if you have suffered a personal injury at work then in most circumstances you will be entitled to workers’ compensation.

Workers’ compensation insurance claims cover periods of total or partial incapacity, medical expenses and, in some instances, a lump sum benefit for any permanent impairment suffered.

The Workers’ compensation Act 1951 makes provision for workers’ compensation to be paid to private sector employees. Claims by public sector employees are covered by Comcare. For information on Comcare see the Comcare information Outline.

Workers’ compensation claims differ from personal injury damages claims arising out of the negligent actions of another. If you are injured at work as a result of the negligence of your employer, for example because of faulty machinery, slippery floors or a careless co-worker, then you are entitled to claim damages against your employer. Generally, such damages claims provide greater benefits than are available to workers’ compensation claimants.

However, the majority of work related injuries are not caused by the negligence of an employer, but are merely accidents. In this situation you will only be able to claim workers’ compensation. Workers’ compensation schemes are “no-fault” schemes so it is not necessary for you to show that your injury was a result of the negligence of your employer.

In the Australian Capital Territory, the Act provides a safety-net level of compensation for employees injured at work without the need to show that the accident was the fault of another. In fact, a worker who is injured through their own carelessness will still be covered by this legislation.

All employers are required to take out insurance to cover their employees for workers’ compensation. An employer who fails to do so can be prosecuted and fined.

If an employee is injured while working for an uninsured employer, that employee is entitled to make a claim against the Nominal Insurer, a body created to cover employees in such a circumstance. In turn, the Nominal Insurer can seek to recover from the uninsured employer any amounts it has been required to pay.

WHO IS COVERED AND IN WHAT CIRCUMSTANCES?

The Workers’ Compensation Act 1951 allows an employee to claim compensation where the employee suffers personal injury arising out of or in the course of their employment.

The Act refers to employees as “workers”. This Kit uses the terms “employee” and “worker” interchangeably.

Am I an Employee?

Generally you will be aware if you are a worker because of the type of relationship you have with your employer.

There are many indicators of an employment relationship including :-

• Where the employer deducts tax from your pay;
• Where the employer determines your hours of employment and the place where you work;
• Where your employer supplies the clothing you wear or the materials you require to perform your duties eg. vacuum cleaner, personal computer, delivery van;
• Where you are entitled to sick leave, recreation leave, long service leave, study leave, leave without pay, etc.

Generally, where an employer exercises considerable control over the manner in which you perform your duties, you are an employee.

The Act also deems some workers to be covered by the employment relationship so that even casual work such as babysitting may be covered by the Act. If you are uncertain if you are a “worker” under the Act then you should seek legal advice.

Injury

An employee must suffer an injury to claim compensation. “Injury” includes any physical or mental injury including stress.

An employee will be considered to have been injured even if the employee had a pre-existing condition such as a bad back or a skin disease, if that condition was aggravated, accelerated or caused to reoccur by the employment.

The Act also provides compensation if employment has caused or aggravated a disease. It is not necessary to show that the employment was the sole cause of the disease. You only need to show that the employment was a contributing factor to the disease.

Many claims for back injuries are based upon the “disease” provisions. In many instances a employee with an injured back has an underlying degenerative condition of the spine which has been made worse, not by a specific incident at work, but by heaving lifting, working in awkward positions or other such factors which have rendered the underlying condition incapacitating.

The Injury must be Employment Related

Where an employee claims compensation for an “injury” at work it need only be shown that the injury occurred while the employee was at work.

On this basis the High Court has decided that an employee, who collapsed at work as a result of a ruptured aneurysm suffering severe brain damage, could claim compensation on the basis that the rupturing of the aneurysm was an injury.

However, where compensation is claimed for a disease the employment must be shown to have contributed to the disease if the worker is to claim.

The Act also specifically covers employees travelling to or from their employment as long as there is no substantial interruption or deviation from the travel which has materially changed or increased the risk of accident.

Many employees who are able to claim damages for the negligence of another driver in a motor vehicle accident also claim workers’ compensation because it provides them with continuing payments for incapacity while their legal representatives prepare their motor vehicle accident claim for hearing. In this situation the employee would not be allowed “double” compensation, but will be required to pay back the workers’ compensation out of the proceeds of their motor vehicle accident claim.

Injuries Not Covered

If an employee is injured as a result of their own serious and willful misconduct then, unless the injury results in death or serious and permanent disablement, compensation will not be payable.

For instance, where an employee who gets drunk, takes a company vehicle and drives at excessive speeds which causes the vehicle to crash, that employee may not be entitled to workers’ compensation if they are injured.

Workers’ compensation will also not be payable where an employee has intentionally caused injury to him or herself.

Where an employee suffers a stress injury mainly caused by reasonable action taken by the employer relating to the “transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal” of the employee or to the “provision of an employment benefit to a worker” then compensation shall not be payable. For example, an employee who suffers a stress injury as a result of failing to obtain a promotion may not be entitled to compensation.

WHAT AM I ENTITLED TO? – WEEKLY PAYMENTS

An employee is entitled to weekly payments of compensation if the employee is totally or partially incapacitated for work.

Total Incapacity

If an employee is totally incapacitated, in other words not able to perform any paid work, then the employee will be entitled to weekly payments of an amount equal to the amount the employee would receive if the employee was to be paid sick leave.

As with sick leave this payment will exclude overtime and allowances. These payments will continue for up to twenty-six weeks whether the incapacity is continuous or the incapacity occurs over a number of discreet periods off work. Any accrued sick leave entitlements are not affected by the payment of weekly compensation.

If the employee remains totally incapacitated after twenty-six weeks then payments continue at a rate (referred to as the “statutory rate”) set by the Act with further amounts for a dependant spouse and/or dependent child. At 31 March, 2000 these amounts were :-

• Total incapacity payments $273.56 per week
• Dependent spouse $ 71.99 per week
• Dependant child $ 33.60 per week

A child is dependent if he/she is less than 16 years of age or less than 25 years of age and a full time student. The statutory amounts are varied every three months based upon changes in the Consumer Price Index.

Partial Incapacity

Where an employee is partially incapacitated, the employee is entitled to weekly payments equal to the difference between the employee’s weekly pay at the date of the injury and the employees earning capacity following the injury. This “top-up” compensation is not allowed to exceed the statutory compensation rate for total incapacity. 

When Do Weekly Compensation Payments Cease?

Once an employer has commenced making workers’ compensation payments, they can only terminate payments by :-

• Agreement with the employee;
• Applying to the Magistrates Court for those payments to be stopped or changed;
• By serving notice on the employee within twelve months after the claim is lodged and allowing eight weeks before ceasing payments.
• When the employee dies (other than as a result of the injury in which case a lump sum payment may be claimed).

Death

If an employee dies as a result of a compensable injury then a dependent (spouse or child) is entitled to a lump sum payment (as at 31 March, 2000 - $95,987.36), funeral expenses (as at 31 March, 2000 - $2,159.72) and weekly payments of $33.60 gross for each dependent child. As with weekly payments, these amounts are varied in accordance with the Consumer Price Index.

WHAT AM I ENTITLED TO? – MEDICAL TREATMENT

An employer is liable for the cost of medical treatment reasonably obtained in relation to an injury or disease for which compensation is payable.

Medical treatment includes chiropractic treatment, the provision of nursing attendance, medicines, medical and surgical supplies, curative apparatus in a hospital or otherwise and travelling expenses. It covers treatment by a medical practitioner, dentist, psychologist, osteopath, physiotherapist, masseur and therapeutic treatment generally, where referred by a medical practitioner or dentist. Your ability to claim treatment expenses will be enhanced if you obtain a referral from your medical practitioner for the treatment in question.

You may also claim for the cost of travelling to and from treatment providers. As at 31 March, 2000 travel costs were allowed at 39 cents/kilometre plus further allowance for the cost of meals where reasonably necessary.

WHAT AM I ENTITLED TO? – LUMP SUM PAYMENTS

Lump Sum Payments

Where an employee is partially incapacitated for work, the employee may claim a lump sum as compensation for the loss of efficient use of a body part, hearing or sight. Lump sum compensation is not available to an employee who remains totally incapacitated. The loss of use must be permanent.

The lump sum payable is calculated by reference to a maximum benefit which is indexed and as at 31 March, 2000 was $95,987.36. This amount is the same as the amount payable for death. The maximum benefit will be paid for :-

• Loss of both eyes;
• Loss of an only useful eye the other being blind or absent;
• Loss of both hands;
• Loss of hand and foot;
• Loss of both feet.

Other losses are expressed as a percentage of the maximum and a copy of the relevant table is extracted from the Workers’ compensation Act 1951 and shown below :-

• Loss of one eye, with serious diminution of the sight of the other 75%
• Loss of one eye 40%
• Loss of hearing 70%
• Complete deafness of one ear 20%
• Loss of right arm or greater part of right arm 80%
• Loss of left arm or greater part of left arm 72%
• Loss of lower part of right arm, right hand or five fingers of right
• hand 70%
• Loss of lower part of left arm, left hand or five fingers of left hand 63%
• Loss of right thumb 30%
• Loss of left thumb 27%
• Loss of right forefinger 20%
• Loss of left forefinger 18%
• Loss of right middle finger 16%
• Loss of left middle finger 15%
• Loss of right ring finger 14%
• Loss of left ring finger 13%
• Loss of right little finger 13%
• Loss of left little finger 12%
• Loss of total movement or joint of right thumb 14%
• Loss of total movement or joint of left thumb 13%
• Loss of distal phalanx or joint of right thumb 16%
• Loss of distal phalanx or joint of left thumb 15%
• Loss of portion of terminal segment of right thumb involving
• one-third of its flexor surface without loss of distal phalanx or joint 14%
• Loss of portion of terminal segment of left thumb involving one-third
• of its flexor surface without loss of distal phalanx or joint 13%
• Loss of two phalanges or joints of the right forefinger 12%
• Loss of two phalanges or joints of the left forefinger 11%
• Loss of two phalanges or joints of the right middle or ring finger 11%
• Loss of two phalanges or joints of the left middle or ring finger 10%
• Loss of two phalanges or joints of the right little finger 10%
• Loss of two phalanges or joints of the left little finger 9%
• Loss of distal phalanx or joint of right forefinger 10%
• Loss of distal phalanx or joint of left forefinger 9%
• Loss of distal phalanx or joint of other finger of right hand 8%
• Loss of distal phalanx or joint of other finger of left hand 7%
• Loss of leg above knee 75%
• Loss of leg below knee 65%
• Loss of foot 60%
• Loss of great toe 20%
• Loss of any other toe 8%
• Loss of two phalanges or joints of any other toe 7%
• Loss of phalanx or joint of great toe 10%
• Loss of phalanx or joint of any other toe 6%

Where the loss is not total, a claim can be made for partial loss of the efficient use of that part of the body affected.

For example, loss of the foot attracts a payment of 60% of the maximum. An injury to the foot which results in a 75% loss of efficient use of the foot will, at 31 March 2000, attract lump sum compensation calculated as follows :-

60% x 75% x $95,987.36 = $43,194.31

From the table, you will notice that greater compensation is awarded for losses associated with the right arm and hand. However, for left-hand dominant workers the Act provides that the compensation otherwise payable for the right arm and hand will be paid for loss of use of the left arm and hand.

Where an injury worsens a further claim may be made in relation to the additional loss of use.

HOW DO I MAKE A CLAIM?

If you have an injury at work you should give notice to your employer and complete a workers’ compensation claim form. These forms are provided to your employer by the insurance company. An employer is required to provide copies of compensation claim forms to employees on request.