INFORMATION OUTLINE

Workers’ compensation is the name given to payments made to employees or workers who are injured or suffer a disease arising from their work; or made to dependants of workers who die through a work injury or disease.

In Tasmania, workers’ compensation payments are provided for by the Workers Rehabilitation and Compensation Act 1988 and Workers’ Compensation Act 1927 (the Workers Comp. Acts). The Workers’ Compensation Act 1927 applies to any worker who is injured prior to November 1988. The Workers Rehabilitation and Compensation Act 1988 applies to work injuries after November 1988. Few people in Tasmania would now have workers’ compensation issues arising to which the Workers’ Compensation Act 1927 applies. For this reason, the Information Outline focuses on the position under the Workers Rehabilitation and Compensation Act 1988, although there are many similarities between the law provided in each of the acts. If you have a workers’ compensation issue to which the Workers’ Compensation Act 1927 applies, this information will be very helpful to you, but before acting on the information, we strongly recommend that you seek advice from a lawyer.

Under Tasmanian law, all employers are required to have private insurance for injuries to their workers. Sometimes, the employers break the law and do not have the required insurance. If this happens, as a worker, you may be able to get compensation from a government insurer called the Nominal Insurer.

The type of workers’ compensation payments that may be available under the

Workers Comp Acts are payments for:

• Incapacity for work – weekly payments;
• Medical costs, travelling and rehabilitation; and
• Lump sum payments.

WHO IS COVERED?

The workers’ compensation Acts cover all workers. Workers are defined to include persons who work under a contract of service or training whether the contract is in writing or not. A worker for the purpose of the workers’ compensation Acts does not include a fisherman remunerated wholly or mainly by a share of the profit or earnings of the boat or independent contractors. It is sometimes difficult to determine whether or not a person is a “worker”. If you are in doubt, it is best to seek legal advice as there a numerous legal principles and cases that assist in the interpretation of the meaning of a worker.

ELIGIBILITY

Generally, workers’ compensation is payable if:

• A worker suffers an injury arising out of and in the course of his or her employment; or
• A worker suffers a disease arising out of and in the course of his or her employment and for which the employment contributed to a substantial degree.

Arising out of and in the course of employment has particular legal meaning and whether or not an injury or disease suffered by a worker can satisfy this requirement depends on the facts of each case. Generally though, a worker will be covered if the injury or disease is caused at or by the workplace, while undertaking normal work. A worker can also be covered if travelling for the purpose of work, but not if he or she is travelling to and from work or is injured during a break away from the workplace. There are some circumstances where a worker who would expect to be covered is not. Examples of such circumstances are set out in Exceptions to Cover.

If you are a worker, but are employed by the Commonwealth or a Commonwealth department or organisation, you will not be eligible for compensation pursuant to the workers’ compensation Acts. Compensation payable to Commonwealth employees injured at work is specially covered by Commonwealth law. You will find further information about the Commonwealth Workers’ Compensation law in the Comcare Information Outline.

EXCEPTIONS TO COVER

There are some exceptions to the usual or normal situation where workers’ compensation cover is available. Examples of such exceptions are:

Stress, anxiety and psychological diseases – Workers’ compensation is not payable in respect of such diseases which arises from reasonable action taken in a reasonable manner by an employer in relation to transfers, promotions, pay reviews and administrative matters.

Serious and wilful misconduct – Workers’ compensation is not payable where the injury is caused by a serious or grave and deliberate or intentional act which the worker knew would result in injury. If the result of the serious and wilful misconduct is death or serious permanent inability to work, compensation will still be payable. If the injury is minor or not serious, then the exception will apply. It is not possible to give a single statement of what type of behaviour or conduct amounts to serious and wilful misconduct. Examples of what has been held to amount to serious and wilful misconduct are:

1. An employee who drove his employers car while intoxicated causing an accident and injury to himself and others.
2. An employee who operated machinery or undertook his work while under the influence of alcohol and suffered injury.
3. An employee who does a thing which he knew would cause the risk of an injury.

It is not common for claims to be disallowed for this reason. Careless behaviour or conduct is not sufficient to satisfy the definition of serious and wilful misconduct.

Journey injuries – If a worker is injured on the journey to or from work, compensation is not payable unless at the request or direction of the employer, or with the authority of the employer, the worker has taken a particular journey. For example if you are asked by your employer to pick up a part or equipment on your way to work for a job you are to do the next day and you have a car accident while doing so, you would usually be entitled to workers’ compensation subject to the other exceptions above.

It should be remembered that if a worker is injured travelling to or from work while using a motor vehicle, he or she would normally be covered by the compensation payable by the Tasmanian Motor Accidents Insurance Board.

MAKING A CLAIM

To make a workers’ compensation claim correctly the following must be done. Not doing all these things may mean that your claim can be rejected or acceptance of it delayed.

1. Report your injury or disease to your employer straight away. You do not have to make the report in writing, you can do so verbally. If you do not do so, payments may be refused, but not always. Most work places have an accident or incident report form or book and you should fill this in straight away after an injury or disease arises as this will satisfy the need to report the injury or disease.

2. Fill in a written claim form. In Tasmania there is a prescribed form that must be used. The form should be available from your employer.

3. Get a medical certificate from your doctor. The certificate must be in a particular form. Most doctors in Tasmania are familiar with the form, but only a doctor accredited under the Workers Rehabilitation and Compensation Act 1988 can provide you with a valid medical certificate. You should check that the doctor you see for the work injury is accredited.

4. Give the completed claim form and the medical certificate to your employer within six months of your injury or within six months of your disease becoming known.

You should take great care in filling out incident/accident reports and your claim form. Make sure that the information you write is accurate. If you are not sure about a question on the claim form, answer it as best you can and if you are not sure about a date or time, write that you are not sure or use “approximately” or “about”.

If you do not give the claim form and medical certificate to your employer within six months, you may not be able to receive workers’ compensation even if you are injured at work. If you do not make the claim within six months, but realise you should have after the six months has passed, you will need the help of a lawyer to see whether or not you can still proceed with a workers’ compensation claim.

What happens next?

After you have made a claim for workers’ compensation, your employer normally refers it to its insurer. If it does not have an insurer, and refuses to deal with your claim, you should see a lawyer to find out if you are covered by the Nominal Insurer.

After receiving the claim, the employer/insurer has 14 days to either accept or dispute the claim. If they dispute your claim, they must notify you and the Workers Rehabilitation and Compensation Tribunal (WRCT) of this within 14 days of receipt of the claim too.

Once there is a disputed claim, the WRCT appoints hearings and conferences to resolve the dispute by agreement or by proceeding to a hearing before a Commissioner.

ACCEPTED CLAIMS

Once a claim has been accepted, a worker is eligible to receive workers’ compensation payments. Receipt of the payments may not be for an indefinite period and may stop if:

1. there is a return to normal work;
2. you are considered to be wholly or substantially recovered from the injury and the effects of it.
3. the employer/insurer apply for and are granted an order reducing or terminating your payments from the WRCT.
4. you fail or refuse unreasonably to participate in a rehabilitation program.
5. you fail or refuse unreasonably to attend a medical examination arranged by the employer/insurer.

Even after a claim is accepted, your employer/insurer is entitled to arrange for you to be medically examined and assessed by a doctor of its choice. You will not necessarily be entitled to see the report provided by the doctor to the employer/insurer.

Payments

The workers’ compensation payments available to a worker once a claim has been accepted are weekly payments; payments for medical, travelling and rehabilitation; and lump sums if a permanent disability has resulted.

Weekly payments Are payable if a person is unable to work because of the injury or disease. For persons injured prior to 16 August 1995, weekly payments are payable based on the average weekly earnings or the person during the 12 months prior to injury. For persons injured after 16 August 1995, weekly payments are payable based on the persons normal weekly earnings and are subject to step down. Normal weekly earnings are calculated as the average income of the person for the 12 months prior to injury but normally excludes bonuses, allowances and sometimes overtime too.

For the first 6 weeks of inability to work, 100% of normal weekly earnings is paid; after 6 weeks and up to 25 weeks of inability to work, 95% of normal weekly earnings is paid; and after 25 weeks of inability to work, 90% of normal weekly earnings is paid.

If you are not able to return to your usual work, but are able to do light duties or reduced hours, you should receive normal pay from your employer for the work you do during a return to work program and workers’ compensation make up of weekly payments so that you are receiving your normal weekly earnings.

Disputes often arise about the correct rate of weekly payments and make up. If you have such a dispute, you will probably have to see a lawyer to sort it out, although you may try to reach an agreement yourself with the employer/insurer.

Weekly payments are limited and the maximum you can receive during the time you cannot work varies. The maximum limit that applies to any particular worker, is set by reference to the year they suffer injury or disease. A person who is injured in the year 2000 is subject to a maximum limit of $152,817.66. For prior years, the limit is less. If you wish to know what maximum limit applies to you, you may consult a lawyer who does workers’ compensation cases or ring the Workplace Standards Authority or WRCT both who should be able to advise.

The right to receive weekly payments is dependant on inability to work. A medical certificate in the prescribed form completed by an accredited doctor must be given to the employer continuously covering periods of inability to work. If this certificate is not provided continuously, the employer/insurer may dispute its obligation to pay weekly payments. If it does so, it must give you notice of this in writing and refer the dispute to the WRCT.

Medical, travelling and rehabilitation expenses

Once a claim is accepted, the employer/insurer, must pay the worker’s cost of reasonable and necessary medical treatment for the injury or disease. This type of payment is separate to the weekly payments and not limited to a sum of money. Where disputes arise in relation to whether a particular treatment is reasonable and necessary, the worker should try to resolve the dispute with the insurer by providing medical reports from treating doctors in support of the need for the treatment. If a dispute continues, an application is required to the WRCT to have the dispute determined by a Commissioner.

If a claim has been accepted, the worker’s reasonable travelling expenses required to attend medical appointments (including specialists, xray or scanning and physiotherapy) should be paid. Normally this means that the worker is reimbursed at a rate of at least 31 cents per kilometre for the distance travelled to and from appointments. If you have a claim, you should keep a record of all appointments you go to, the date of the appointment and the distance travelled. This will assist you in making your claims for reimbursement from time to time. If you are not able to drive because of your injury or condition, it may be possible to recover the cost of bus or taxi fares instead of the kilometre rate.

An employer has a duty to provide rehabilitation designed to ensure the return to work of the injured worker over time. Often a rehabilitation provider will be appointed to arrange and manage your return to work. If you are expected to return to work, you should be given a written proposed return to work program prepared in consultation with you and your treating doctors. If you are given a written return to work program and you unreasonably fail or refuse to act on it, your payments of compensation may be cut off. It will only be valid for an employer/insurer to cut off compensation for this reason, if they first give you written notice of their intention to cut off payments at least 10 days prior to them being cut off. If you do not agree with the return to work program and have a legitimate reason for not participating, you can seek re-instatement of your payments by making an application to the WRCT. Such an application must be filed with the WRCT within 60 days of you receiving notice of the payments being cut off

A worker can represent himself or herself at such a hearing, but most employers/insurers have legal representation so it is preferable that the worker have representation too as legal issues will be involved.

Lump sum payments

Workers who have had certain kinds of injuries which are permanent are entitled to receive lump sums in accordance with a formula contained in Section 71 of the Workers Rehabilitation and Compensation Act (there are similar provisions in the Workers’ Compensation Act 1927). The lump sum payments are in addition to weekly payments and the payment of medical, travelling and rehabilitation expenses.

If you believe you have an entitlement of this kind, you will need to obtain a medical opinion from a suitably qualified specialist as to the nature and extent of your permanent injury. To receive lump sum compensation, the injury suffered must produce a permanent loss of function. Usually an employer and its insurer will discuss settling a claim for lump sum compensation after consideration of relevant medical opinions. If settlement cannot be agreed, then an application to the Workers Rehabilitation and Compensation Tribunal is required. It is preferable that a lawyer assist with this.

DISPUTED CLAIMS

When a claim for compensation has been made, an employer has 14 days from receipt of the claim to notify the claimant if they dispute the claim. The notice of dispute must be given in writing and it must contain reasons for disputing the claim. If a written notice of dispute is not given to the claimant within 14 days, the claim is deemed to be accepted.

If a claim has been disputed by notice given properly in writing, the employer must also notify the WRCT of the dispute and provide relevant documents relating to the claim and the dispute. Upon receipt of this documentation, the WRCT will appoint a hearing and notify the relevant parties of the date and time for the hearing. This type of hearing is called a genuine dispute hearing and is only a preliminary hearing. The decision of the WRCT is not final and at the genuine dispute hearing, the WRCT’s function is to assess whether on the material provided to it there is an arguable reason why the employer should not pay the claim. Evidence is rarely given at this type of hearing which is informal in nature and very brief. You can represent yourself at such a hearing but usually employers will be represented by a lawyer or an insurance claims officer. You may be disadvantaged if you do not have legal representation as legal issues will be involved. In the vast majority of cases, a genuine dispute will be found to exist upon this type of hearing and the effect will be that the WRCT makes an order that the employer does not have to pay compensation.

If a genuine dispute is found, a dissatisfied worker who wishes to pursue his or her claim may do so by lodging another application for a final hearing of the claim. This kind of application is made pursuant to Section 42 of the Workers Rehabilitation and Compensation Act. Application forms are available from the WRCT, but it is preferable that you seek legal advice and representation at this stage of a dispute as ultimately, the claim may have to proceed to a final hearing. A final hearing will involve calling lay and medical witnesses, cross-examining opposing witnesses and arguing the law. It will be difficult for a person not legally represented at a hearing and they may be at a disadvantage because the employer and insurer will almost certainly be legally represented.

TERMINATION AND REVIEW OF COMPENSATION

The acceptance of a claim for workers’ compensation does not mean that responsibility for payments is accepted by the employer for all time. Under the Workers Rehabilitation and Compensation Act, there a three different methods which an employer can use to either terminate or reduce payments of compensation.

(a) Section 86 – This provision of the Workers Rehabilitation and Compensation Act allows an employer to terminate or reduce payments in certain circumstances. The usual circumstances where an employer will use Section 86 to terminate or reduce payments is where it has a medical opinion to the effect that a person has wholly or substantially recovered from the injury or a worker has failed or refused to participate in a rehabilitation program recommended by the employer. To terminate or reduce payments properly under this section, the employer must serve on the worker written notice of the termination or reduction at least 10 days prior to termination or reduction. Such notice must be accompanied by a copy of any medical opinion which is relied on. After service of notice under section 86, payments automatically stop, but if a worker disagrees with the termination, he or she can apply to the WRCT for re-instatement of payments . This procedure usually involves an ultimate hearing . This hearing will involve calling lay and medical witnesses, cross-examining opposing witnesses and arguing the law. It will be difficult for a person not legally represented at a hearing and they may be at a disadvantage because the employer and insurer will almost certainly be legally represented. It is recommended that you seek legal advice if your payments have been terminated or reduced in this way. Payments of compensation are not made during the period that it takes to have the workers application determined by the WRCT.

(b) Section 88 – This section of the Workers Rehabilitation and Compensation Act enables an employer to apply to the WRCT for an order that it can terminate or reduce payments. Usually this type of application is made based on medical evidence available to an employer. Where an employer applies under section 88 to terminate or reduce payments, it must continue making payments until its application is heard and succeeds. If you are given notice of such an application in your workers’ compensation claim it is suggested that you will need legal advice to prepare a defence to the application and represent you at the hearing.

(c) Section 81A(5) – This section of the Workers Rehabilitation and Compensation Act enables an employer who wishes to no longer pay compensation when it initially accepted the claim to apply to the WRCT for an order that it no longer has to pay compensation. Usually this section will be used when an employer has medical or other evidence which is unfavourable to the worker. An application is filed and the worker is given notice of it. The procedure usually involves an ultimate hearing . This hearing will involve calling lay and medical witnesses, cross-examining opposing witnesses and arguing the law. It will be difficult for a person not legally represented at a hearing and they may be at a disadvantage because the employer and insurer will almost certainly be legally represented. It is recommended that you seek legal advice if you receive notice of an application of this sort.