1 Gibney & Gunsn LAWYERS New Suth Wales & Victria YOUR NEW SOUTH WALES WORKERS COMPENSATION CLAIM Nt cvered by the scheme Injuries that ccur n the way t r frm wrk (wrkers wh are injured while driving during the curse f wrk may claim cmpensatin) Pain and suffering but if yu have whle persn impairment (WPI) f 10% r mre, yu will receive tax free lump sum cmpensatin Heart attack (unless yur emplyment cntributed t the heart attack) Strke (unless yur emplyment cntributed t the strke) Disease (unless the wrkplace is the main cause f the disease) Mental harm r nervus shck suffered by a relative r dependant that arises in cnnectin with the death f r injury t the wrker (unless the pure mental harm is a wrk injury that is, an injury t the wrker) Whle persn impairment less than 10% Lump sum fr whle persn impairment (Sectin 66 claims) Yu suffered an injury. Yu cnsider that yu have sustained permanent damage. If the level f whle persn impairment is greater than 10%, a lump sum will be paid. The lump sum is free f tax. Only ne claim can be made. The lump sum depends n the extent f yur whle persn impairment. The extent f yur impairment must be assessed by a WrkCver NSW accredited medical specialist. Only ne reprt (fr assessment f yur whle persn impairment) can be btained frm a medical specialist. The medical specialist will assess yur whle persn impairment. The WPI assessment will be used t assess the amunt f yur lump sum. The benefits payable fr whle persn impairment change frm time t time. If yu enter benefits guide in the search engine fr the WrkCver NSW website (www.wrkcver.nsw.gv.au) yu will find the current benefits guide.
2 Gibney & Gunsn Yur NSW Wrkers Cmpensatin Claim 2 Weekly payments If yu have genuine whle r partial incapacity fr wrk (which must be certified by a dctr), yu may be entitled t receive weekly payments f incme supprt. The amunt f weekly cmpensatin will be calculated as a percentage f pre-injury average weekly earnings (with a maximum cmpensatin amunt f $1,838.70) minus any current earnings, any amunt the wrker is able t earn in suitable emplyment, r any nn-pecuniary benefits received by the wrker frm the emplyer. The weekly payments are lumped int three perids (weeks 1-13, weeks , and after week 130) and there are set statutry frmulas established by the NSW Parliament t determine the rate f the weekly payments. The frmulas vary in each f the three perids and differ depending n whether the wrker has sme capacity r n capacity t wrk. The weekly payments fr wrkers with n capacity are calculated as fllws (slight variatin f frmula fr wrkers with capacity): Fr weeks 1-13, the lesser f: 95% f the wrker s pre-injury average weekly earnings (AWE) minus the value f any nn-pecuniary benefits that are prvided by the emplyer (any benefits) r the maximum weekly cmpensatin amunt f $1, minus any benefits. Fr weeks , the lesser f: 80% f the wrker s AWE minus any benefits r the maximum weekly cmpensatin amunt f $1, minus any benefits. Fr weeks after 130, the lesser f: 80% f the wrker s AWE minus any benefits r the maximum weekly cmpensatin amunt f $1, minus any benefits. Subject always t repeated medical examinatin, and certificatin by dctrs as t yur wrk incapacity, yu may be entitled t 2.5 years f weekly payments. Fr mst wrkers, weekly payments will nt be paid fr mre than 2.5 years. Weekly payments will cntinue after 2.5 years if the wrker has n current wrk capacity and is likely t cntinue indefinitely t have n current wrk capacity. A wrker wh is assessed as having current wrk capacity may be entitled t weekly payments beynd 2.5 years if the wrker: has applied t the insurer n earlier than 52 weeks befre the end f the 130 weeks fr cntinuatin f weekly payments after the 130 week perid
3 Gibney & Gunsn Yur NSW Wrkers Cmpensatin Claim 3 has returned t wrk fr a perid f nt less than 15 hurs per week and is in receipt f current weekly earnings f at least $ per week is assessed as being, and as likely t cntinue indefinitely t be, incapable f undertaking further additinal emplyment r wrk that wuld increase the wrker s current weekly earnings. If yu are a very seriusly injured wrker, with whle persn impairment exceeding 20%, yu may be able t receive weekly payments f cmpensatin fr a perid greater than 5 years. If yur whle persn impairment is 20% r less, all weekly payments rights cease at 5 years fllwing yur injury. Medical expenses Yu may be entitled t medical cver (the cst f reasnable medical treatment in relatin t yur injury r cnditin) if the requirement fr treatment claimed fr has been substantially cntributed t by the wrk injury. The cst f yur medical treatment and related expenses will be limited t treatment and services prvided within 12 mnths after a claim fr cmpensatin is first made, r within 12 mnths after weekly payments cease, whichever prvides a lnger perid (unless yu are an injured wrker with mre than 30% whle persn impairment). Yu will need t keep all tax invices/receipts. Yu must clear all csts in advance f incurring them. Yu shuld d this by cntacting the wrkers cmpensatin insurer in advance f the appintment. The wrkers cmpensatin insurer will nt pay the csts f any treatment if the treatment is given withut prir apprval, if the treatment is given by a persn wh is nt qualified t give the treatment, r if the treatment is given by a dctr whse registratin is limited r subject t cnditins. Discriminatin The Wrkers' Cmpensatin Act prvides a range f benefits. It is illegal fr an emplyer t act in a biased way against yu because yu make a claim. It is cmpulsry fr emplyers t have wrkers cmpensatin insurance. Wrkers cmpensatin is a wrker s right, nt a privilege. Legal expenses and ther expenses If yur whle persn impairment exceeds 10%, yu will receive tax free lump sum cmpensatin, and yur legal csts will be paid by WrkCver NSW in accrdance with a schedule f csts established by a gvernment regulatin. If there is a dispute in relatin t yur claim that is required t be determined by the Wrkers Cmpensatin Cmmissin f NSW, each party t the dispute (yu and the wrkers cmpensatin insurer) must pay their wn csts.
4 Gibney & Gunsn Yur NSW Wrkers Cmpensatin Claim 4 Yu will have t cver the cst f hspital recrds, treating dctr s recrds, radilgy recrds, and the specialist medical reprt (which is required t be btained t determine yur level f permanent bdily impairment). The cst f these reprts wuld nt nrmally exceed $1, This amunt will nt be able t be recvered (as each party must pay their wn csts). Will yur case g t curt? There is n curt. Disputes are managed by the Wrkers Cmpensatin Cmmissin, which is a gvernment authrity. In rare cases, the cmmissin will cnvene a hearing befre it. Mst cases are reslved withut need fr a hearing. Cmmencing the claim prcess If yu wish t claim, yu will be given a questinnaire and medical authrities fr yu t cmplete and sign. The authrities enable us t btain yur treatment recrds and medical reprts. Withut medical assessment f yur impairment, yu are nt permitted by WrkCver t make a claim fr a lump sum. Where t frm here? T cmmence yur claim, yu must underg medic-legal examinatin. Dr James Rwe, a specialist ccupatinal physician f Melburne, travels t Albury n a mnthly basis t see ur injured wrker clients. Fr Dr Rwe t see ur injured wrker clients and t prvide impairment reprts, his must be paid in advance f the appintment. Dr Rwe's fee is $1, and is t be paid int ur trust accunt upn cnfirmatin f the appintment. Dr Rwe will prvide his tax invice and receipt t ur ffice. A cpy will be prvided t yu. Yu will nt be able t be assessed until yur cnditin is stable. If yur injury is stable, and yu wuld like t prceed with an appintment with Dr Rwe, we will arrange fr such appintment and will write t bth yu and Dr Rwe t cnfirm it. Affrding the medical reprts The cst f the medical reprt (Dr Rwe) can be an bstacle t sme wrkers advancing their claims. Mst f ur injured wrker clients d eventually manage t make the cst (ften with the assistance f family members r friends).
5 Gibney & Gunsn Yur NSW Wrkers Cmpensatin Claim 5 Negligence claims (wrkplace injury damages) In very rare cases, an injured wrker may be able t bring a claim f a type knwn as a negligence claim. T bring a negligence claim, the injured wrker must be very seriusly injured, with impairment f at least 15%. Very few injured wrkers reach the 15% threshld. If the injured wrker is assessed with whle persn impairment f at least 15%, he/she may be able t bring a negligence claim. Fr such a claim t succeed, hwever, there must be negligence n the part f the emplyer. If the injured wrker can establish bth impairment f at least 15% and emplyer negligence, a negligence claim can be made. Such claims are limited t ecnmic lsses lst wages, etc. If the injured wrker brings a negligence claim fr his/her ecnmic lsses, nce the claim is reslved, the injured wrker s rights t all ther benefits, including incme supprt and medical treatment, terminate. Fr this reasn, negligence claims require very careful cnsideratin and shuld nt be lightly be cmmenced. Internet resurces Yu can find ut mre abut wrkers cmpensatin in NSW by ging t the website f WrkCver NSW. The website is Lavingtn 2/346 Griffith Rad (PO Bx 594), Lavingtn, NSW 2641 DX 5835, Albury, NSW Telephne: (02) Facsimile: (02) Wdnga 18 Jarrah Street, Wdnga, VIC 3690 Melburne 74/299 Queen Street, Melburne, VIC 3000 GIBNEY & GUNSON Lawyers New Suth Wales & Victria