FAQs About Workers Compensation Claims in NSW

1. Time limits for lodging workers compensation claims:

If you sustain an injury at work, notice of the injury must be given to your employer as soon as possible after the injury happened and before you voluntarily leave your employment at the time of the injury. Failure to give notice of an injury as required is not a bar to the recovery of compensation or work injury damages if special circumstances exist.

In New South Wales, the time limits for lodging a workers compensation claim are governed by the Workplace Injury Management and Workers Compensation Act 1998 (NSW). According to section 261(1) of the Act, a claim for compensation must be made within:

• 6 months after the injury happened, or
• In the case of a disease, within 6 months after the worker first becomes aware of the disease and that it is work-related.

Exceptions to the General Time Limit: Section 261(4) of the Act provides exceptions where a claim may be made after the expiration of the 6 month period if the delay was due to ignorance, mistake, absence from the State, or other reasonable cause. If this applies, the claim must be made within:

• 3 yearsafter the injury or accident happened, or in the case of death, within 3 years after the date of death, or
• If the claim is not made within 3 years, it must be in respect of an injury resulting in the death or serious and permanent disablement of a worker, and it must be reasonable and just to do so.

Pursuant to section 261(5), the failure to make a claim within the required period is not a bar to the recovery of compensation if the workers compensation insurer determines to accept the claim outside that period. However, a workers compensation insurer cannot accept a claim made more than 3 years after the injury or accident happened or after the date of death, except with the approval of the Authority.

There are occasions outside the 3 year period when an injured worker is not aware of a work-related injury or illness until many years after the fact. Situations include hearing loss, lung cancer, and other medical conditions caused in workplace environments. If one of these scenarios applies, the time limit for making a workers compensation claim commences from the moment the injured worker becomes aware of the injury or illness symptoms and their cause.

It is important to ensure that claims are lodged within the specified time limits to avoid complications. Consulting with one of Penrose Lawyer’s legal professionals who can provide guidance and ensure that the claim is properly handled and that you adhere to the time limits that apply.

2. Do you have to prove your employer was responsible for your injury to receive workers compensation benefits:

In New South Wales, the workers’ compensation scheme is a “no-fault” basis scheme, meaning that you do not need to prove liability or fault to make a claim for workers compensation benefits. This system is designed to ensure that workers who are injured or become ill due to their work can receive compensation and support without the need for lengthy and complex legal proceedings to establish fault.

Despite the New South Wals workers compensation scheme being a “no-fault” scheme, an injured worker needs to be able to prove that their injury was a result of their employment for their workers compensation claim to be accepted.

If you have sustained an injury at work, provided your employment was ‘a substantial contributing factor’ to you sustaining the injury, liability will generally be accepted by the workers compensation insurer. If you contract a disease as a result of your employment, your employment must be ‘the main contributing factor’ to you contracting the disease.

It is sometimes the case that employees sustain injuries during the course of engaging in an activity that is not related to their work duties, for example, an assault by a colleague in relation to a personal dispute which the employer was not aware about. Although the New South Wales workers compensation scheme is a “no-fault” scheme, an injured worker still needs to be able to prove that their employment was a substantial contributing factor to the injury or a main contributing factor to contracting the disease to be eligible for workers compensation benefits.

3. What happens after I lodge my workers compensation claim?

Once the workers compensation insurer has received an initial notification of injury it must:

• start provisional payments within 7 calendar days unless there is a reasonable excuse not to; or
• delay starting provisional weekly payments by issuing a reasonable excuse within 7 days; or
• determine liability (an workers’ compensation insurer must determine liability for a workers compensation claim within 21 days after the claim is made. This means that the workers’ compensation insurer must either accept or dispute liability within this period).

In New South Wales, provisional payments are a feature of the workers compensation system designed to provide immediate financial support and medical treatment to injured workers while their claim is being assessed. This ensures that injured workers do not face undue hardship while waiting for their claim to be formally accepted or denied. Provisional payments can be made for up to 12 weeks while the workers’ compensation insurer assesses the claim. This period can be extended in certain circumstances.

Provisional payments also cover reasonably necessary medical and treatment expenses related to the injury up to the sum of $10,000.00. This includes consultations with doctors, specialists, allied health professionals, and other medical services.

The provision of provisional payments does not constitute an admission of liability by the workers’ compensation insurer or employer. It is simply a mechanism to ensure that injured workers receive timely support.

The workers compensation insurer has a reasonable excuse for not starting provisional weekly payments if any of the following apply:

• There is insufficient medical information;
• The injured person is unlikely to be a worker;
• The workers’ compensation insurer is unable to contact the injured worker;
• The injured worker refuses access to information;
• The injury is not work related;
• There is no requirement for weekly payments (i.e. the injured worker has not taken time off work); or
• The injury is notified after 2 months (note: this reason cannot be used if the acceptance of liability is likely and provisional payments will be an effective way to manage the injury).

4. What benefits can I receive if I am injured at work:

An injured worker in New South Wales is generally entitled to the following benefits:

• Weekly payments of compensation during periods of incapacity for work.
• Reasonably necessary medical treatment expenses required as a result of the work injury.
• Lump-sum compensation for permanent impairment sustained as a result of the work injury if they meet a certain threshold.

Weekly payments of compensation during periods of incapacity for work

An injured worker has an entitlement to receive weekly payments of workers compensation while unfit for work. Weekly payments are paid at a rate of 95% of the injured worker’s pre-injury rate of pay for the first 13 weeks off work. Then for the next 117 weeks, an injured worker is entitled to be paid 80% of their pre-injury income if they remain unfit for work, 95% of their pre-injury income if they return to work for at least 15 hours per week but not their pre-accident hours, or 85% of their pre-injury income if they return to work less than 15 hours per week.

The weekly payments to an injured worker who is totally unfit for work extend for a maximum of 130 weeks or 2.5 years. Where an injured worker remains unfit for their pre-injury role after 2.5 years but has returned to work doing light duties of at least 15 hours per week, that injured worker may be entitled to make-up pay for a maximum of another 130 weeks or 2.5 years if certain conditions are meet:

• they have completed and provided the workers’ compensation insurer with an Application for Continued Weekly Payments after 130 Weeks no earlier than 52 weeks before the end of the 130 week period;
• they have returned to work for at least 15 hours per week, and
• they are assessed by the workers’ compensation insurer as likely to continue indefinitely to be incapable of undertaking further additional employment or work that would increase their current weekly earnings.

Where an injured worker remains totally unfit for work after 2.5 years, they may be entitled to make-up pay for a maximum of another 130 weeks or 2.5 years if the workers compensation insurer assesses the injured worker as having no capacity for work which is likely to continue indefinitely. In those circumstances, the maximum number of years of weekly compensation extends out to become a total of 5 years.

There is an exception to the 5 year weekly payments rule. Where an injured worker has an injury which results in a degree of whole person impairment (WPI) of greater than 20%, the injured worker has the potential to receive weekly payments beyond 5 years.

Where an injured worker has a degree of whole person impairment (WPI) of greater than 30%, that injured worker is determined to be a “seriously injured worker” and is entitled to be paid weekly compensation indefinitely and for the rest of their working life.

An injured worker must obtain and provide the workers compensation insurer with a certificate of capacity/certificate of fitness which is completed by their nominated treating doctor when there is an incapacity for work. The certificate of capacity/certificate of fitness must be renewed at least every 28 days when the injured worker is unfit for their pre-injury duties and a copy must be provided to the workers compensation insurer. If a certificate of capacity/certificate of fitness is not provided to the workers compensation insurer, the injured worker will not receive a payment of weekly compensation.

Work Capacity Decisions: A work capacity decision is a decision made by a workers compensation insurer throughout the life of a claim to confirm the amount of an injured worker’s weekly payments of compensation. Work capacity decisions determine any one or more of the following:

• Current work capacity.
• What is considered suitable employment for the injured worker.
• What an injured worker can earn in suitable employment.
• An injured worker’s pre-injury average weekly earnings (PIAWE) or current weekly earnings.
• Whether an injured worker can engage in certain employment without risk of further injury.
• Any other decision that may impact entitlements to weekly payments of compensation.

The Workers Compensation Act 1987 defines suitable employment as: suitable employment in relation to an injured worker means employment in work for which the injured worker is currently suited, having regard to, the nature of the injured worker’s incapacity, and the injured worker’s age, education, skills and work experience, regardless of whether the work or the employment is available, whether the work or the employment is of a type or nature that is generally available in the employment market, the nature of the injured worker’s pre-injury employment, and the injured worker’s place of residence.

A work capacity decision is likely to be made when:

• New information has been received about the amount of the injured worker’s pre-injury average weekly earnings (PIAWE).
• The injured worker’s capacity for work or their ability to work in suitable employment changes.

For work capacity decisions where there is an increase or no change to the injured worker’s weekly payments, the decision will come into effect immediately. When a work capacity decision is made that reduces or stops the injured workers weekly payments, the workers compensation insurer will provide the injured worker with the following notices:

• If the decision is made before 12 continuous weeks of payments have been paid to the injured worker, they will receive 7 days’ notice to allow time for the decision to be posted to them.
• If the decision is made after 12 continuous weeks of payments, the injured worker will receive 7 days’ allowance for the post plus a minimum notice period of 3 calendar months.

If a work capacity decision is made with the effect of reducing the weekly payments made to an injured worker, we recommend you contact Penrose Lawyers for an obligation fee discussion so we can assist in advising of the steps required to dispute a work capacity decision as strict time limits apply.

Medical Expenses

An injured worker is entitled to have their reasonable medical treatment expenses paid by the workers compensation insurer. The medical expenses payable includes any reasonable medical treatment such as seeing a general practitioner or seeing a specialist or having an operation if required. An injured worker is also entitled to medication, physiotherapy, seeing a psychologist or any other reasonable medical treatment that is required. Medical expenses are paid by the workers compensation insurer while an injured worker is receiving weekly payments of workers compensation.

An injured worker may also be entitled to claim domestic assistance such as the cost of engaging a commercial cleaner if the assistance would have not been required but for the injury. Unless the injured workers injuries have resulted in a degree of permanent impairment of at least 15%, an injured worker is entitled to claim a maximum of 6 hours of domestic assistance on a weekly basis for a maximum of 12 weeks.

When weekly payments of compensation stop, the injured worker is entitled to continue to receive medical treatment expenses for at least another 24 months after the time that weekly payments stopped if their degree of permanent impairment is between 0 –10%. If the injured workers degree of permanent impairment is assessed at between 11 –20%, then the injured worker is entitled to continue to receive medical treatment expenses for at least a further 5 years after the time that weekly payments stopped. Injured workers who are assessed as having a degree of permanent impairment of above 20% are entitled to receive medical treatment expenses for the remainder of their life.

Prior approval must be obtained from the workers compensation insurer before having medical treatment.

Lump-sum compensation for permanent impairment

An injured worker may be entitled to a lump-sum payment for permanent impairment sustained as a result of their workplace injuries. An injured worker is entitled to a lump-sum payment if their degree of permanent impairment satisfies the threshold of 11% whole person impairment (WPI) or greater for physical injuries and 15% whole person impairment (WPI) or greater for primary psychological injuries.

An injured worker is prevented from claiming a lump-sum payment for permanent impairment for secondary psychological injuries.

This process requires injured workers to be assessed by a medico-legal assessor who is approved by the State Insurance Regulatory Authority (SIRA). The assessor will assess their degree of permanent impairment. In order for an assessor to assess an injured worker’s degree of permanent impairment, the injured worker must have reached maximum medical improvement (MMI). Maximum medical improvement (MMI) is considered to occur when an injured worker’s condition is well stabilised and is unlikely to change substantially in the next year, with or without medical treatment.

If the injury occurred following July 2012, an injured worker is only able to lodge one permanent impairment lump-sum compensation claim on the workers compensation insurer. Their degree of permanent impairment assessment may also be determinative of their continuing future entitlements to weekly compensation and medical treatment expenses. It is therefore critical that an injured worker wait until their condition stabilises, as, if their condition deteriorates in the future, they will be unable to make a further lump-sum compensation claim with the workers compensation insurer.

If an agreement on the percentage of whole person impairment (WPI) cannot be reached with the workers compensation insurer, your lawyer will submit an application to the Personal Injury Commission (PIC) for the appointment of an independent medical specialist referred to as an Approved Medical Specialist (AMS) to evaluate the whole person impairment (WPI) percentage.

5. Will the insurer pay my legal fees?

We are approved lawyers with the Independent Review Office (IRO). The Independent Review Office (IRO) provides approved lawyers with grants of legal funding to represent injured workers with respect to their workers compensation claim. Grants of legal funding are provided in stages and are not available for Work Injury Damages claims (discussed below). Grants of legal funding are generally provided when a dispute arises between the injured worker and the workers compensation insurer.

6. Can you sue your employer for your injury? – work injury damages claims

If an injured worker is assessed as sustaining an impairment threshold of 15% whole person impairment (WPI) or more, they will be entitled to a lump-sum payment as well making a work injury damages claim. To be successful in a work injury damages claim, the injured worker needs to be able to prove that their employer was negligent, they should be held responsible for their injuries, and that they could have taken reasonable precautions to prevent the injured worker from sustaining injuries.

7. What are the time limits for filing a work injury damages claim?

It is important to note that there is only 3 years from the date of an injury to commence Court proceedings for work injury damages claims. At the expiration of that period, an injured worker does not have the automatic right to maintain proceedings commenced and will require leave from the Court to maintain proceedings commenced out-of-time. The Court has a strict approach when considering applications to maintain proceedings commenced out-of-time and there is no guarantee that the Court will allow an injured worker to maintain proceedings commenced out-of-time.

If you are eligible to claim a work injury damages claim, we recommend that you contact Penrose Lawyers for no obligation discussion to see how we can assist with a work injury damages claim and assist with commencing proceedings.

8. What compensation can I claim for work injury damages claims?

With work injury damages claims in New South Wales, you can claim compensation for past and future economic loss due to the injury, including loss of superannuation benefits. This includes loss of earnings and loss of future earning capacity. The claim is subject to specific provisions and caps as outlined in the Workers Compensation Act 1987 (NSW). We encourage you to consult with a legal professional at Penrose Lawyers for a no obligation discussion to ensure that your work injury damages claim is properly assessed and that you receive all the entitlements you are eligible for.

9. Can I manage a work injury damages claim without a lawyer?

While it is possible to handle work injury damages claims without legal representation, doing so often results in lower compensation. At Penrose Lawyers we are adept at dealing with insurance companies and can ensure you receive fair and adequate compensation. Negotiating without legal advice is risky, as any statements made can be used against you, and settlements reached will conclusively end your rights to further compensation.

10. What is the State Insurance Regulatory Authority (SIRA) and its role?

The State Insurance Regulatory Authority (SIRA) is the regulatory body responsible for overseeing the workers compensation scheme, motor accidents compulsory third party (CTP) insurance, and home building compensation in New South Wales. In relation to the workers compensation scheme, some of the State Insurance Regulatory Authority’s key roles and responsibilities include, regulation and oversight, policy development, licensing and supervision, dispute resolution, education and support, data collection and analysis, compliance and enforcement, financial oversight, return to work programs, overseeing the medical assessment procedure, and developing workers compensation guidelines.

11. When I am injured at work, does my employer have any responsibilities?

Employers in New South Wales have a duty to promptly report workplace injuries to their workers compensation insurer, keep a register of injuries, notify the State Insurance Regulatory Authority (SIRA) and SafeWork NSW in cases of serious injuries, provide information to the injured worker, facilitate the claims process, and participate in injury management and return to work programs. These duties are essential to ensure that injured workers receive the necessary support and compensation.

This advice provided in this article is general and you should speak to Penrose Lawyers regarding your specific requirements as exceptions may apply.