SUMMARY OF THE NSW WORKERS COMPENSATION SYSTEM
To assist you to understand the Workers Compensation system we
set out the more important points. This is a general summary and
some aspects of this information may not relate to your
particular set of circumstances. You should contact the Union
Solicitors for further information and advice.
Weekly Compensation
Following your injury if your doctor has certified you as being
totally incapacitated for work you are entitled to claim weekly
payments of compensation at your award rate or EBA rate for the
first six months following your injury. If you are not covered
by an EBA, for example, if you are a casual worker, then your
weekly compensation rate is calculated differently. Basically,
in most cases, you will be entitled to 80% of your earnings
during the six months of your injury. It is also CFMEU policy
that during the first six months you are off work following your
injury you should be paid your productivity allowance. Many
insurance companies will exclude that payment when calculating
your compensation payments. After this initial period the rate
is then reduced to a lower rate called the statutory rate. The
current statutory rate for a single person with no dependants is
$340.90 gross per week. This rate increases depending on the
number of dependants you have.
If at any time you are certified by your doctor as being fit for
light duty work you must obtain a certificate from your treating
doctor to this effect and then apply to your employer (where you
were injured) for light work. The company’s refusal to offer you
suitable employment will result in you obtaining an increased
rate of compensation. We realise your employer may have
terminated your employment or you may be aware that light work
is available, however, you must make the request.
Once you have applied for light duty work, we require a copy of
the medical certificate that you handed to your employer and
advice as to:-
|
1) |
The date
you applied. |
|
2) |
The name of
the person you spoke to. |
|
3) |
Details of
the conversation. |
In addition to
making a request for light duty work to your employer, you must,
in order to obtain the higher rate of compensation, be actively
looking for suitable work. We would suggest that you purchase a
diary and keep an exact record of jobs you apply for including
the date of your applications and the result. This can be used
in evidence if your claim comes before the commission.
Further, upon your return to work after an injury, you may not
be aware that if you are suffering a wage loss compared to your
earnings had you remained uninjured, this difference, subject to
certain limits, can be claimed from the insurance company. This
applies, for example, should you be forced to change employment
to a lesser paying job as a result of injury, or if following
your return to work you are put on restricted duties with a
consequent loss of overtime opportunity. Most insurance
companies will cease payments of compensation once they are
advised of your return to work. It is therefore necessary in
these circumstances that you advise your solicitor if you are
losing money and provide an estimate of the loss so that a claim
can be lodged on your behalf.
You should also note that if you are receiving weekly
compensation either by way of a Court award or being paid
voluntarily by the insurance company, it is possible that the
insurance company may in the future attempt to stop those
payments or reduce them.
Lump Sum Compensation
Lump sum compensation for permanent injury can be claimed once
your specialist considers that your injury has reached the stage
where no further improvement can be expected. At this point, a
report can be obtained from a WorkCover trained assessor
requesting an assessment of disability and a claim can be
brought. Again, most insurance companies do not volunteer such
payments and it is necessary for you to instruct your solicitor
to make such claim. The payments referred to are payable under
the Permanent Disability Tables of the Workers Compensation Act
and do not in any way settle or finalise any future entitlements
you may have under the Act.
Please note that under current legislation there are threshold
provisions in respect of hearing loss and primary psychological
or psychiatric injuries. In relation to hearing loss you are
only entitled to claim if your hearing loss is at least 6%
binaural which is equivalent to 3% whole person impairment. In
relation to a primary psychological or psychiatric injury, your
injury must be at least a 15% whole person impairment before
entitlement to lump sum compensation exists.
Medical Expenses
You are entitled to claim the cost of all reasonable medical
treatment required as a result of your injury. Please ensure you
contact your solicitor if the insurance company refuses to pay
for your medical treatment, including travelling expenses.
Time Limit for Workers Compensation Claims
You must make a claim for compensation not later than 6 months
following the injury. If a claim is not made within this period
you may be prevented from claiming, although the Workers
Compensation Commission may grant an extension of time.
Top Up Insurance
If your employer at the time of your injury had a policy of top
up insurance with Coverforce, and you had an accident, then you
may be entitled to claim:
|
(a) |
If your accident was outside
working hours there is a 24-hour insurance coverage
paying 75% of your average weekly earnings after a
waiting period of 30 days for a maximum period of three
years.
|
|
(b) |
If your accident occurred at
work then the above applies except that the amount of
workers compensation payments being received from your
employer’s worker’s compensation insurer is deducted.
Example: If your earnings are $1,000.00 a week
and workers compensation payments of $500.00 a week
being made by your employer’s workers compensation
insurer, Coverforce will pay $250.00 as outlined above.
|
|
(c) |
If your claim involves
payment of lump sum compensation for permanent
impairment and pain and suffering, you may be entitled
to an additional lump sum payment once your claim is
successfully completed.
|
For further
information contact Coverforce on 96495920
Long Service Leave Credits
Many workers forget to advise the Building and Construction
Industry Long Service Payments Corporation if they are off work
and are also unaware that they are still allowed to accrue long
service leave, even though they may be on workers compensation
or have had their employment terminated.
Please make sure
you speak to the Long Service Payments Corporation people to
make sure you are registered to continue to receive your long
service leave credits whilst you are on workers compensation.
We would suggest that if you have enquiries you call the help
line on 131 441 or visit them at the CFMEU Lidcombe office.
Rehabilitation
The CFMEU and the Master Builders Association of New South Wales
have entered into a joint venture to provide comprehensive
rehabilitation services to the construction industry. The
provider, Mend Rehabilitation Services, is located at 6-8
Railway Street, Lidcombe and can be contacted on Freecall: 1800
300 011. You
are entitled by law to nominate which company you prefer to
provide you with rehabilitation. If there has been no
rehabilitation provider appointed or you wish to change your
rehabilitation provider, you should contact Mend on the above
number.
Procedure in the Workers Compensation Commission
After making your claim for compensation the insurance company
(in the case of a claim for weekly payments of compensation or
payment of medical expenses) has 21 days or (in the case of a
claim for lump sum compensation) 8 weeks to accept same.
If after this period there has been no response from the insurer
or if the claim is unable to be resolved, proceedings can then
be commenced in the Workers Compensation Commission.
After proceedings have been commenced the commission will
schedule a teleconference with an Arbitrator and the insurance
company.
If your matter does not resolve at the telephone conference it
should proceed to an Arbitration Hearing at a later date.
If your matter involves a medical dispute, it will be necessary
for you to undergo examination(s) with an Approved Medical
Specialist (AMS). An Approved Medical Specialist is an
independent medical examination arranged by the Workers
Compensation Commission. The results of this examination may be
binding on both yourself and the insurance company.
Medical Examination
During the course of this matter, you will be requested to
attend medical examinations arranged by us and also medical
examinations arranged by the solicitors for the insurance
company. It is very important that you attend these
examinations. If you fail to attend an examination, it can have
the following consequences:
|
(a) |
The doctor will probably
charge a non-attendance fee, which can be quite
expensive; and
|
|
(b) |
the finalisation of your
matter can be delayed because the insurance company will
not agree to the matter proceeding any further if you
have failed to attend one of their examinations.
Similarly, if you fail to attend one of the examinations
we have scheduled, it may be necessary to have the
proceedings adjourned.
|
Whether you are
being examined by treating doctors or attending appointments
arranged by the insurance company or us, it is extremely
important that you give an accurate history to the doctor about
your injuries.
Insurance Investigations
Insurers often engage investigators to provide them with a
report as to the circumstances of an accident. Sometimes those
investigators will also be asked to make enquiries to see
whether the complaints of an accident victim are genuine.
Sometimes those investigators even follow the accident victim
and/or take movie film of the accident victim from concealed
positions, often through a concealed hole in the side of a
parked motor vehicle.
You should not be alarmed or worried if any such investigations
occur in your case. You should carry on your life in a normal
way. Investigations are unlikely to affect genuine claims in any
way.
If an investigator should question you about the accident, we
suggest that you decline to reply and simply refer the
investigator to us. Unfortunately, there have been cases in the
past where a dispute has arisen as to what was or what was not
said to an investigator and it is unwise to expose yourself to
that risk. If you have any questions in this regard, please do
not hesitate to contact us.
Common Law Claims
If your injuries are caused by the fault of your employer (or
someone else, such as the builder or head contractor in a
construction site accident), you may be entitled to commence a
common law action for damages. Any common law action must be
commenced within three (3) years from the date of your injury.
Please note if your injuries are as a result of the fault of
your employer, you may only bring a common law claim if an
Approved Medical Specialist (AMS) assesses your injuries at a
15% whole person impairment or greater. Only severe injuries
will usually fall into this category. Any common law action
brought against your employer will result in a final payment of
damages in respect of any past and future rights you have to
compensation for your injuries. However, if your claim is
against a third party other than your employer, then the
difficult 15% threshold does not apply.
