Contents. What is Workers Compensation? 4. Making a Claim for Workers Compensation 6. Getting Back to Work 11

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1 RRP $5.50

2 Contents What is Workers Compensation? 4 Who can claim? 4 When are you entitled to benefits? 4 Journey claims 5 Recess claims 5 Union representative claims 5 Psychological injury claims 5 Making a Claim for Workers Compensation 6 Reporting the injury 6 Notifying the employer 6 Notifying the insurer 6 Do you or your employer need a WorkCover medical certificate to initially notify the insurer? 7 Notifying WorkCover 7 Workcover Medical Certificates 9 Completing the WorkCover medical certificate 9 Workers Injury Claim Forms 9 Do you need to fill in a claim form in order to make a claim? 9 Is there a time limit on making a claim for workers compensation? 9 Provisional Liability 10 When do provisional payments start and end? 10 What is a reasonable excuse for the insurer not to pay within seven days? 10 Declined Claims 10 Getting Back to Work 11 Principles of rehabilitation 11 Procedures 12 Return-to-work plans 13 Outcome of rehabilitation 13 Doctors 13 Nominated treating doctor 13 Specialists 14 Approved medical specialists 14 Does my employer have to attend a medical appointment? 14 Rehabilitation Providers 15 Referral to a provider 15 Payment of provider s costs 15 Changing a provider 15 PAGE 2

3 Benefits of Workers Compensation 16 Weekly Payments 16 Total incapacity 16 Partial incapacity suitably employed 16 Partial incapacity not suitably employed 17 For how long do you receive weekly payments? 17 Weekly Payments While on Workers Compensation 18 Examples of weekly payments Notice required before termination or reduction of weekly payments 21 Discontinuation of weekly payments after two years 21 When weekly payments should be made 21 Sick leave, annual leave and other entitlements 21 Annual leave and long service leave 22 Public holidays 22 Medical and Hospital Expenses 22 Travel 22 Compensation for domestic assistance 23 Permanent Loss or Impairment 23 Pain and Suffering 23 Damage to Spectacles, Clothing, Artificial Aids etc. 23 Death Benefits 24 Work Injury Damages 24 Government Assistance 24 Weekly wage 24 Medical expenses 25 Dismissal While on Workers Compensation 25 Resignation While on Workers Compensation 26 Taxation of Compensation Benefits 26 Workers Compensation and Superannuation Contributions 27 Total and Permanent Disability Payments and Superannuation 27 Choosing the Right Solicitor 28 How the SDA Can Help 28 PAGE 3

4 What is Workers Compensation? If you suffer an injury or disease which is caused, aggravated, exacerbated or accelerated by the work you do, the workers compensation scheme provides benefits to compensate for the injury or disease. As a result of the injury or disease, you may suffer incapacity for work, require medical treatment, or suffer the permanent loss or impairment of a part of the body. You may even suffer death. The various compensation benefits available under this system are described in this booklet. Who Can Claim? Workers compensation benefits are available to all employees whether they are full-timers, part-timers or casuals, managers or trainees. Under no circumstances should you accept statements that you are not entitled to workers compensation for any reason until you have checked with the SDA Information Centre. When are you entitled to benefits? You must have suffered an injury or disease or have met with an accident which was work related. If a pre-existing condition is aggravated, accelerated or exacerbated as a result of the work you perform, you may be entitled to compensation benefits. Your work must be a substantial contributing factor to your injury or disease, unless you are injured on a journey to or from work, during a recess from work, or in your role as a Union Delegate. Your treating doctor will be required to provide an opinion as to the likelihood of your employment being a substantial contributing factor on the WorkCover certificate they supply. The injury must result in at least one of the following: Death. Total or partial incapacity to perform work. The need for medical, hospital or rehabilitation treatment, travelling expenses or costs associated with modifying the house, car or the work environment. Permanent, total or partial incapacity of the person of either a physical or psychological nature. Damage to clothing or artificial aids. You are generally not entitled to benefits if your injury is found to be attributable to your serious and wilful misconduct. If you have any questions in relation to these claims, please contact the SDA Information Centre. PAGE 4

5 Journey claims If you suffer an injury or disease on a relevant journey you may be entitled to benefits. Wilful or serious misconduct will disentitle you from possible benefits. The journey to or from your home ends or begins at the boundary on which your residence is located. If your place of abode is a unit, the boundary is from the outside of the unit block, not the front door of the individual unit. Relevant journeys entitling a worker to compensation include journeys: between the worker s place of abode and place of employment, between the place of abode or employment and an educational institution which is required for work, and between the place of abode or employment and any other place for the purpose of receiving a medical certificate or medical treatment in connection with an injury for which the worker is entitled to receive compensation. Recess claims Injuries that occur during lunch breaks or other authorised absences from work may be covered by workers compensation. This can include tea and lunch breaks. If you have any questions in relation to these claims, please contact the SDA Information Centre. Union representative claims If you are an authorised Union Delegate and sustain an injury or disease in the course of your duties as a Union Delegate pursuant to your enterprise agreement (for example, Union Delegate training), you may be entitled to workers compensation. If you have any questions in relation to these claims, please contact the SDA Information Centre Psychological injury claims In order to make a workers compensation claim arising out of a psychological injury, you must be able to show that the injury was not wholly or predominantly caused by reasonable action taken by your employer with respect to such matters as transfers, promotions, demotions, performance appraisals, dismissal, retrenchment, discipline or provision of employment benefits to workers. Your WorkCover medical certificate must use accepted medical terminology and include a statement of your medical practitioner s opinion concerning the likelihood of employment being a substantial contributing factor to the psychological injury. Medical treatment from a specialist (e.g. psychiatrist) is recommended in order to substantiate your claim. PAGE 5

6 Making a Claim for Workers Compensation In order to simplify the process of making a claim for workers compensation, each one of the steps outlined below must be followed to ensure that an acceptable claim has been made. There are three things an employee should do in making a claim for workers compensation: 1. Report the injury or disease to your employer/supervisor as soon as possible after the incident and ensure that it is recorded accurately in the Register of Injuries. 2. Visit the doctor of your choice and obtain a WorkCover medical certificate if time off work is required or suitable duties are needed. Give your employer the original copy of the WorkCover medical certificate. 3. Obtain a Worker s injury claim form from your workplace, the SDA or Work- Cover. Complete the injury claim form and give it to your employer. Reporting the injury Reporting the injury as soon as possible is a vital step in making a claim for workers compensation. Notifying the employer Notice of the injury must be made to your employer as soon as possible after the injury. The notice of injury may be given verbally or in writing and must be given to any person designated by the employer for that purpose or to any person under whose supervision the worker is employed. Failure to do this could lead to your claim being denied. A notice of injury must state: the name and address of the person injured; the cause of the injury in plain language; and the date on which the injury happened. Every workplace should contain a Register of Injuries. Failure to have one is in breach of the Workers Compensation Act and can lead to penalties. Recording your injury in a Register of Injuries is sufficient for notification. Notifying the insurer An initial notification means the first notification of a workplace injury that is given to the insurer. PAGE 6

7 A worker, employer, or some other person (for example, a doctor) acting on behalf of the worker or employer can give the insurer initial notification of an injury. The notification can be done verbally (including over the phone) or in writing (including by electronic means). The insurer must request information that is essential to make a decision within the next three working days if the notification is incomplete. The initial notification is complete when the insurer has all of the minimum identifying information. However, the duty falls on the employer to notify the insurer within 48 hours after the employee tells them of the injury. When notifying an insurer, the following information should be supplied: worker s details, including their name, telephone number, residential address and date of birth; employer s details, including business name and current business address (not applicable for self insurers); treating doctor s details, including their name or the hospital at which the injured worker was treated; and details of how the injury/disease occurred, including the date of the injury/disease, how it happened and what the injury/disease is. Do you or your employer need a WorkCover medical certificate to initially notify the insurer? No. However, the insurer is entitled to request such a medical certificate or authority from the injured worker to contact and discuss their condition with the injured worker s treating doctor or specialist. Notifying WorkCover In some circumstances, it may be necessary for the employer to notify WorkCover of an incident. Notice should be given as soon as possible within seven days. Situations where the employer may be required to notify WorkCover include: an incident that results in a significant injury; damage to plant or structure that impedes safe operation; an explosion or fire; an incident that presents an immediate threat to life; or a fatality. PAGE 7

8 WorkCover Medical Certificate PAGE 8

9 WorkCover Medical Certificates A WorkCover medical certificate is not required for provisional payments to commence, but the insurer is entitled to request it. For liability to be accepted however, you will have to duly lodge a WorkCover medical certificate. It is also important to ensure that you forward ongoing WorkCover medical certificates to your employer/insurer if you are unable to return to work after the expiry date of the previous certificate. Receipts for medical treatment, travelling expenses, payment for pharmaceutical costs and any other costs associated with the treatment and rehabilitation of the injury must also be forwarded to the employer or insurer. It is most important that you are issued with a WorkCover medical certificate by the treating doctor. Any other form of certificate may not be legally effective. Completing the WorkCover medical certificate The doctor is required to complete the WorkCover certificate. It must include a statement of their opinion regarding the likelihood of your employment being a substantial contributing factor. It is essential to take a photocopy of the white copy prior to lodging it. Note: Make sure you keep copies of all documents forwarded to your employer. Workers Injury Claim Forms Once initial notification of an injury is made, a workers compensation claim should be duly made. Do you need to fill in a claim form in order to make a claim? To initially notify an injury, a claim form is not required and anyone may notify an insurer. However, in most circumstances it is important to submit a workers injury claim form to duly lodge a claim. An employer cannot refuse to supply a claim form. Failure to provide a claim form is a breach of the Workers Compensation Act. If an employer refuses to provide a claim form, contact the SDA Information Centre immediately. Is there a time limit on making a claim for workers compensation? A claim for workers compensation must be made within six months of the date of the injury, however, it should be done as soon as is possible. In special circumstances this period can be extended to three years. Failure to make the claim within six months could put your claim at risk. PAGE 9

10 Provisional Liability Provisional liability allows an insurer to begin paying weekly payments and medical expenses within seven days without admitting liability (and without requiring a WorkCover medical certificate or claim form). Provisional liability also applies to provision of compensation benefits such as medical or related treatment, ambulance services, hospital treatment, and occupational rehabilitation services, etc. When do provisional payments start and end? After initial notification, an insurer has seven days to accept provisional liability unless the insurer has a reasonable excuse. Provisional payments can continue for a maximum of 12 weeks. An insurer can only avoid commencing provisional payments within the seven days if: a) the insurer declines liability; b) the employee is off work for fewer than seven days; or c) the insurer has a reasonable excuse not to commence weekly payments. What is a reasonable excuse for the insurer not to pay within seven days? A reasonable excuse can be: insufficient medical information (note that a WorkCover medical certificate is not required unless it is requested in writing); the claimant is not a worker; the insurer is not able to contact the injured worker; the worker refuses the insurer access to medical information; the injury is not considered to be work related; the injury is not significant (i.e. the employee is off work for fewer than seven days); or the injury is notified more than two months after occurring. If an insurer has a reasonable excuse, they have a further 14 days to accept liability. However, if payments do not commence within seven days, contact the SDA Information Centre immediately. Declined Claims If your claim is declined, the insurer has an obligation to notify you in writing of the reasons why. As soon as a claim has been declined, contact the SDA Information Centre. The SDA has Union solicitors available to assist in disputes arising out of declined claims. You may also be able to make use of other statutory entitlements in the meantime, as well as government assistance, until liability can be established or you are fit to return to work. PAGE 10

11 Getting Back to Work YOUR GUIDE TO WORKERS COMPENSATION Occupational rehabilitation is the restoration of an injured worker to the fullest physical, psychological, economic, vocational and social capability, consistent with their pre-injury status. This is a managed process aimed at maintaining ill or injured workers, or returning them to other suitable employment. It involves early intervention with appropriate, adequate and timely services based on assessment of the injured worker s needs. Accredited rehabilitation providers are organisations accredited by WorkCover to provide injured workers with specific rehabilitation services. Rehabilitation providers are staffed with health professionals such as occupational therapists, physiotherapists, psychologists and rehabilitation counsellors. The costs of the rehabilitation provider are paid by the insurer. The Workplace Injury Management and Workers Compensation Act 1998 requires an employer to provide rehabilitation to injured workers. The Act provides for injured workers to participate in rehabilitation programs which are designed to assist injured workers to return to preinjury duties or an alternative form of paid and productive work. Participation in a return-to-work program is compulsory. However, if you are able to return to some form of rehabilitation and are cleared to do so by your treating doctor, but do not accept your employer s offer to be rehabilitated, you may jeopardise your weekly payment entitlements. Principles of rehabilitation Rehabilitation should be carried out in the best environment for injured workers to get back to the job. This is generally at the workplace. The benefits of rehabilitation are greatest when the process is begun as soon as possible after an injury. However, the return-to-work process may aggravate an injury if begun too soon. An injured worker should have the opportunity of a staged return to normal duties consistent with the treating doctor s advice. Injured workers should not be put into a situation at work where they feel unwanted, worthless or rejected. Return-to-work plans should be developed in consultation with the injured worker, their supervisor(s), the treating doctor, the company doctor, the returnto-work provider (where necessary) and the SDA (where necessary). Return-to-work plans, where agreed upon, should be put in writing and copies given to all relevant parties. PAGE 11

12 When developing return-to-work plans, consideration should be given to: n n n n the nature of the worker s incapacity and the details given on the Work- Cover medical certificate; the worker s age, education, skills and work experience; the worker s pre-injury employment; where the worker lives; n any return-to-work assessment or plan prepared by an accredited rehabilitation provider; and n suitable duties available at the place of work. There must be a commitment on the part of all interested parties to the rehabilitation of the injured worker (e.g. worker, employer, union, doctor(s) etc.) for the rehabilitation to be successful. Disputes over the liability of claims should not prevent the return-to-work process from proceeding. Procedures If and when you are able to return to suitable or alternative duties, you must obtain a certificate from your treating doctor. The certificate must be in the form of a WorkCover medical certificate and provide the following information: the nature of the injury; your ability to return to work; any physical limitations; and any other restrictions, e.g. duties, hours. Please ask your treating doctor/specialist to be as specific as possible when outlining the information listed above. You must inform your employer of the doctor s recommendations and lodge the WorkCover medical certificate with the workplace manager or return-to-work co-ordinator. The manager/return-to-work co-ordinator should: 1. Obtain approval from you in order to obtain information relating to your injury or disease. 2. Organise suitable duties and hours for you, following the doctor s advice or recommendation. 3. Offer duties and hours (i.e. the rehabilitation program) to the worker in writing. 4. When you return to work, the manager/ rehabilitation co-ordinator must monitor the progress of your program on a regular basis, such as weekly or fortnightly. 5. If for some reason a workplace manager/ rehabilitation co-ordinator is unable to prepare a rehabilitation program for you, or if your rehabilitation requires specialised attention due to the nature of the injury, it may be necessary to involve the services of a provider to assist with this procedure. PAGE 12

13 Return-to-work plans A return-to-work plan is a written statement of the steps that will be taken to help you get back to work. If you have a significant injury and have an accepted workers compensation claim, your employer must arrange a return-towork plan for you. A return-to-work plan can be developed by a trained return-to-work co-ordinator, or an accredited rehabilitation provider in consultation with all the relevant parties including the nominated treating doctor. This plan must be in writing and contain: 1. commencement date; 2. review dates and length of program; 3. job title and location; 4. duties including restrictions or specific duties to be avoided; 5. agreed purpose or goal of suitable duties; 6. hours/days to be worked; 7. arrangements to attend treatment or medical appointments; 8. the name of the supervisor; and 9. documented agreement by all parties. Outcome of rehabilitation One of the following outcomes should be applicable to you. a) You gradually return to your pre-injury duties and hours with the same employer; or b) The program was not assisting you and therefore the doctor must be consulted and a new program developed; or c) Rehabilitation to pre-injury duties is not possible due to medical reasons and you are gradually returned to alternative duties with the same employer; or d) Due to the extent of the injury, it is not possible to rehabilitate you, so you may be retrained to work in other areas of interest or usefulness with either the same employer (if available) or a new employer. If neither rehabilitation nor retraining is possible, you are entitled to continued weekly payments. Doctors There are often a number of doctors involved in rehabilitation of an injured worker. This section describes the types of doctors you are likely to encounter as an injured worker. Nominated treating doctor A nominated treating doctor is normally a general practitioner who will assist in managing your recovery. Your WorkCover medical certificates will be issued by your nominated treating doctor. You have to nominate your treating doctor. The doctor you nominate must be prepared to assist in your return-to-work plan. You should be sure that the doctor you nominate understands their role. PAGE 13

14 When choosing your nominated treating doctor, make sure you are comfortable with him/her as it may be difficult to change doctors later on. However, there may be a good reason for a change. If you are thinking about changing your nominated treating doctor, contact the SDA Information Centre. IMPORTANT: Do not automatically accept the employer s or insurer s assertion that you must use their approved doctor. If you have a GP you prefer, you can insist on that GP being the nominated treating doctor. If there is any difficulty, contact the SDA Information Centre immediately. Specialists For more serious injuries and illnesses, you may be referred to a specialist. Referrals to specialists are made by GPs. Decisions on medical treatment will be made based on advice from specialists. Approved medical specialists An approved medical specialist is a senior specialist with a sound knowledge of the workers compensation scheme. The Workers Compensation Act enables an insurance company, your employer or the Workers Compensation Commission to require you to attend medical examinations by doctors or an approved medical specialist nominated by them. If you are asked to attend an approved medical specialist, you must attend or risk losing your weekly benefits. All costs associated with lost wages, travelling to and from the doctor/approved medical specialist, treatment received and consultation fees must be paid for by the insurance company, the employer or the Workers Compensation Commission, even if a claim has been denied. This does not mean that you must not consult your own doctor/specialist. In fact, it is imperative that you consult your own doctor/specialist regularly and seek medical treatment should this be considered necessary by your treating doctor/specialist on a regular basis. Under no circumstances should you discontinue consulting your own doctor simply because the insurance/company doctor or approved medical specialist seems to be all right. You should always maintain treatment and consultation by your own doctor. Does my employer have to attend a medical appointment? Employers need to know the nature and extent of your work-related injury so they can assist in getting you back to work. However, the injured worker has the right PAGE 14

15 to a private and confidential consultation with the doctor. While the employer has no right to intrude into the doctor-patient relationship, the doctor may need to discuss with the patient and employer issues regarding return-to-work and rehabilitation. If the employer attends the medical appointment with the patient, it should only be with the patient s consent and not by intimidation or by the employer barging their way into the consultation. If your employer wishes to attend a medical appointment with you, ask them to wait outside while the consultation is taking place and invite them in once it is over. Rehabilitation Providers Providers are occupational health practitioners who assist in the rehabilitation process by providing specialist advice and recommendations at the workplace to injured workers and their employers. In New South Wales, providers are required to be accredited by the WorkCover Authority. Payment of provider s costs If your claim has been accepted, the insurer pays for the costs of a provider in the same way that the treating doctor s fees are paid. If your claim has been declined, the insurer is not liable for these costs. Changing a provider If you are not satisfied with the treatment you are receiving from a provider, you can change your provider. There is no legal requirement to continue to receive treatment from a provider with whom you are dissatisfied. Providers are usually called in when rehabilitation is more complicated (e.g. psychological injuries, long-term injuries). Referral to a provider Anyone, including an injured worker, can contact a provider and refer injured workers to them for assistance. For example, the employer, the insurer, the Union, a Union Delegate or a member of the injured worker s family can refer the worker to a provider. PAGE 15

16 Benefits of Workers Compensation The workers compensation scheme offers a range of compensation benefits to injured workers, which include weekly payments, medical expenses, compensation for damaged property and lump sum compensation for permanent impairment and pain and suffering. Weekly Payments If, as a result of a work injury, you suffer either total incapacity for work or partial incapacity for work and you suffer economic loss as a result of that incapacity, you are entitled to claim weekly payments of compensation. Total incapacity Total incapacity means you are unfit for any of your normal work duties or other duties for which you are reasonably suited having regard to your education, training and experience. For the first 26 weeks of total incapacity, you are entitled to receive the base rate of pay under the applicable award or enterprise agreement (excluding overtime, shift allowances, penalty rates or any other form of over-award payment). If you have more than one job and are totally unfit for all jobs, the total earnings in all jobs is applied in a formula to determine the appropriate rate of payment. If there is no applicable award or enterprise agreement, the rate of pay is set at 80% of average weekly earnings immediately before becoming incapacitated. If you remain incapacitated for more than 26 weeks, weekly payments are paid up to a statutory rate prescribed under the workers compensation legislation. The statutory rate provides a maximum amount for a single worker with additional amounts payable for a dependent spouse and dependent children. The amount paid under the statutory rate cannot exceed the current weekly wage rate. These statutory rates are indexed on 1 April and 1 October each year. To obtain a current figure, please refer to the members section of the SDA NSW Branch website at Partial incapacity suitably employed Partial incapacity means that you can do one of the following: a) All or most of the same sort of work you did before the injury but with some restrictions; or b) Some of the work you did before the injury but at a reduced number of hours; or c) None of the work you did before the injury but can perform other suitable duties. If you are partially incapacitated and have been provided with suitable duties by your employer as part of a rehabilitation pro- PAGE 16

17 gram, but are earning less than you would have had you not been injured, (for example, working reduced hours per week), you are entitled to receive make-up pay for your loss. This make-up pay should compensate you for the difference between what you should have been earning but for the injury and what you are now physically able to earn. However, the make-up pay itself cannot exceed the amount you would have been entitled to if you were totally incapacitated. Unlike the situation of a worker who is totally incapacitated, make-up pay can include penalty rates, shift allowances and overtime to accurately compensate you for what you would have been earning if not for the injury. For example, if you were receiving $440 per week at the time of the accident and because of the injury you have been limited in the number of hours that you can work and therefore can only earn $300 per week, the insurer must make up the difference between the wage you were earning and the wage that you are able to earn after the injury. In this example, the insurer is liable for $140 per week and the employer pays $300 per week. Partial incapacity not suitably employed If you are partially incapacitated, but no suitable duties are available, and you are involved in rehabilitation, retraining or job seeking, you are entitled to receive the award rate of pay for the first 26 weeks from the date when the employer fails to provide suitable duties (this rate excludes overtime, shift allowances, penalty rates and all forms of over-award payments). After the first 26 weeks, you are entitled to receive the maximum of either 80% of your current weekly wage rate or the statutory indexed rated of pay for a further 26 weeks. These payments cease after 52 weeks. After that time you may be eligible for weekly payments for partial incapacity where the insurer will assess your earning capacity and pay the difference between your gross weekly wage and your assessed earning capacity. For how long do you receive weekly payments? Weekly payments are available for any period you are suffering economic loss arising from your incapacity to work, and last up to 12 months after you reach the pensionable age. If you are of pensionable age at the time of injury, you are entitled to weekly compensation for up to 12 months following the date of injury. Other benefits are not affected by the pensionable age restriction. This means that hospital, medical, rehabilitation, damage to spectacles, clothing, and payments for loss of use or function continue to be paid even though you may be past the pensionable age. PAGE 17

18 Weekly Payments While on Workers Compensation Weekly Benefits First 26 weeks weeks 52 weeks until retirement age Total incapacity Current weekly wage rate (award or enterprise agreement rate not including penalties and bonuses) Statutory rate (not to exceed current weekly wage rate) Statutory rate (not to exceed current weekly wage rate) Partial incapacity at work on suitable duties Make-up pay based on average weekly earnings. Includes any penalties and averaged overtime. Make-up pay capped at statutory rate. Make-up pay capped at statutory rate. Partial incapacity suitable duties not available Current weekly wage rate (award or enterprise agreement rate not including penalties and bonuses) 80% of current weekly wage rate or statutory rate, whichever is highest. Difference between preinjury earnings and ability to earn on the open labour market. Statutory Rate at April 2010 With dependent spouse Without dependent spouse No children $ $ child $ $ children $ $ children $ $ children $ $ Each extra child $ $ Note: The above rates are applicable as at 1/04/10 and are subject to change. To obtain current rates of pay, please refer to the members section of the SDA NSW website at PAGE 18

19 Examples of Weekly Payments Example 1: Phillip is a grocery assistant in a supermarket who injures his back lifting a box. Phil is totally incapacitated (completely off work) for 13 weeks. Phil then returns to work for two weeks on his full duties before going off again for 15 weeks. In total, Phil has been totally incapacitated for 28 weeks. For the first 26 weeks of his total incapacity, Phil would receive his current weekly wage rate (not including penalties or bonuses). This is despite the fact his total incapacity was broken by a return to work. For the last two weeks of his total incapacity, Phil would receive the appropriate statutory rate. Example 2: Bernard is a sales assistant in a department store who injures his knee after tripping and is totally incapacitated for 30 weeks before returning to work on full duties. Bernard earns $ as a full-time employee (excluding penalties) and has a dependent wife and one child. In the first 26 weeks of total incapacity, Bernard would receive his current weekly wage rate as per his enterprise agreement which is $ After 26 weeks, Bernard would receive the appropriate statutory rate which in this instance would be $ Example 3: Robert is a full-time store worker at a distribution centre. Robert has four children and a dependent wife. He is totally incapacitated and has been off work now for 35 weeks and is therefore entitled to the applicable statutory rate of pay which is $ Robert s current weekly wage rate under his award however is $ Because the statutory rate is higher than Robert s current weekly wage rate, Robert will receive the less of the two which is $ PAGE 19

20 Example 4: Jane is a part-time checkout operator in a discount department store, and has an injured elbow caused by lifting items at the checkout. Before her injury, Jane worked 20 hours a week on the checkouts but as part of her return-to-work plan, is now back at work on suitable duties doing ticket pricing for 10 hours a week. Jane s pay before she received the injury was $ a week including penalties. Jane s wages now that she is back at work are $ a week. Because she is partially incapacitated and on suitable duties, the insurance company will pay Jane the difference between her current pay and her pre-injury pay which is $ Example 5: Rosemarie works as a full-time team member at a hardware store but is currently off work with a neck injury which she sustained at work. Rosemarie has been cleared for suitable duties, however there are none currently available. She has been off work for 27 weeks while cleared for suitable duties. Rosemarie s current weekly wage rate before the injury was $ She has no dependants. Rosemarie is entitled to either 80% of her current weekly wage rate or the statutory rate, whichever is higher. In this case, Rosemarie s weekly payments would be $532.00, 80% of her current weekly wage rate, which is higher than her applicable statutory payments of $ Example 6: Aliscia is a fast food employee with an ankle injury. Aliscia s nominated treating doctor has cleared her to work her full hours but on suitable duties which would involve her taking periodic rests and alternating between sitting and standing. Aliscia s employer does not have any suitable duties available for Aliscia and she has been off work for over a year now while cleared for suitable duties. Aliscia has continued to look for jobs that would fit her restrictions but none have come up. Aliscia s pre-injury earnings were $ The insurer has Aliscia assessed and determined she could possibly earn $ a week as a part-time receptionist on the open labour market given her restrictions. Aliscia will be paid the difference between pre-injury earnings and her ability to earn which is $ per week. PAGE20

21 Notice required before termination or reduction of weekly payments While you are receiving workers compensation benefits, you must notify the insurer or your employer if there are any changes to your employment that affect your earnings, for example if you start your own business, undertake paid work (including subcontracting) or voluntary work. Failure to notify may result in prosecution for fraud with possible imprisonment. Discontinuation of weekly payments after two years Weekly payments may be discontinued after a two-year period from the date of incapacity whether total, partial or a combination of both. This may only occur if the worker falls within one or more of the following categories. a) The worker is partially incapacitated for work and not in suitable employment but is not seeking suitable employment. b) The worker is partially incapacitated but able to do some work and has unreasonably refused an offer of suitable employment. c) The worker is partially incapacitated and has failed to obtain suitable employment solely because of the state of the labour market rather than due to the effects of the worker s injuries. The insurance company will need to give such workers 12 weeks notice of the discontinuance of weekly payments under this section. When weekly payments should be made Your workers compensation payments should be made at the same time as your wages would usually be paid, or at fortnightly intervals or at such times as you and your employer agree. Sick leave, annual leave and other entitlements If your claim has been denied and you are awaiting the outcome of the claim, you may request the payment of outstanding annual leave and long service leave entitlements until such time that the entitlements are exhausted or until the claim has been decided. These entitlements may be restored by agreement with your employer if the claim is finalised in your favour. Accrued sick leave may also be accessed, but this should only be done on the understanding that it will be reimbursed if your workers compensation claim is successful. You are not entitled to receive weekly payments while you are receiving sick pay. Normally, the procedure for claiming sick leave, annual leave and long service leave during the disputed period is for you to approach management and request such PAGE 21

22 leave. While employers are not compelled to provide any of these entitlements in lieu of workers compensation, they rarely deny these benefits. Should this occur, contact the SDA Information Centre immediately. Annual leave and long service leave If you are either totally or partially incapacitated you are entitled to receive annual leave and/or long service leave in addition to any workers compensation benefits you may be receiving. For example, if you have been injured and have been unable to return to any form of work since the date of your injury, and you are still employed, you are entitled to apply for any outstanding annual leave or long service leave which you may have accrued. Many employers and injured workers are misguided in thinking that annual leave and long service leave payments are not available during a period for which a worker is entitled to, or is receiving, workers compensation payments. This is incorrect and disputes regarding the matter should be referred to the SDA Information Centre as soon as they arise. Public holidays If, but for the injury, you would have received the benefit of a public holiday, your employer must ensure that you are compensated in accordance with your enterprise agreement or award. Medical and Hospital Expenses You are entitled to be reimbursed for approved medical, pharmaceutical, hospital and travelling expenses you incur as a result of, or for treatment of, the workrelated injury. Medical costs include such treatment as nursing, physiotherapy, chiropractic, speech therapy, dentistry, supply of artificial limbs and homecare assistance if necessary. Medical treatment can also include modifications to your home or car to cater for your special needs arising out of the injury or disease the insurer must meet the cost of such modifications. The treatment received must be: a) prescribed by the treating doctor or specialist in writing; and b) administered by an accredited practitioner. Travel When using your own vehicle to travel to or from medical treatment, a claim should be made for the number of kilometres travelled. The per kilometre reimbursement rate is set by the Workers Compensation Act. To claim for alternative travelling costs, a worker must provide the insurer with receipts or tickets for the journey. PAGE 22

23 If this is not possible, a worker can list details of the costs and send these details to the insurer. Most insurance companies will only accept taxi fares where there is evidence to justify each individual taxi trip, rather than the use of public transport. Again, please remember to keep copies of all information sent to the insurer. The details which should be sent to the insurer when claiming travelling and medical costs are: date of travel; reason for travel; from (where you started from); to (destination); distance (km) if own vehicle is used; cost of fare if public transport is used; total amount. Compensation for domestic assistance If you reasonably require domestic assistance, you may be able to apply for assistance subject to some restrictions. If you require such assistance, contact the SDA Information Centre. Permanent Loss or Impairment If you suffer any permanent bodily impairment, either physical or psychological, you are entitled to receive lump sum compensation for permanent impairment attributable to your employment. The amounts are determined in reference to how impaired your whole body is in relation to your injury. Approved medical specialists use WorkCover guidelines to determine whole of person impairment. Special restrictions apply for obtaining psychological injury benefits. This is in addition to the weekly wage and the other benefits which have been described so far. If you receive offers from the insurer you should seek advice from the Union regarding the amounts which have been offered. Pain and Suffering If you have received a lump sum of money for permanent loss or impairment described in the previous paragraph, you may also qualify for an additional pain and suffering payment. You have to be particularly injured to receive this benefit (at least 10 per cent of whole of person impairment). Your Union solicitor will advise you as to your eligibility for this benefit. Damage to Spectacles, Clothing, Artificial Aids etc. If you have an accident at work or on the way to and from work (which does not necessarily have to result in an injury) and damage your spectacles, clothing, artificial aids, eyes or teeth etc, you may be entitled to be reimbursed for the cost of repairing or replacing the damaged item. There are maximum limits on compensation for damage to these items. PAGE 23

24 Please refer to the members section of the SDA NSW Branch website at for updated figures. Clothing does not include jewellery or, in most cases, watches. The procedure for making such a claim is simple. When an item has been damaged as a result of an accident, you should notify your employer and request the replacement or repair of the damaged item. If refused, you must make a claim on a standard workers compensation claim form. If you are denied this entitlement, contact the SDA Information Centre immediately. Death Benefits If a work-related injury results in death, and the worker leaves dependants who were wholly or partly dependent on the worker for support, an amount of compensation is payable including reasonable funeral expenses. Where there are no dependants compensation is payable to the worker s legal representative or to a person to whom any expenses fall due. Enquiries regarding these matters should be directed to the SDA Information Centre. Work Injury Damages If you suffer an injury due to the fault of some other person, you may be able to sue that person for damages at common law. Fault usually means negligence or breach of a statutory obligation. Ordinarily that other person will be your employer if you suffer the injury at work. These claims are quite complex and should be considered carefully before proceeding. They must commence within three years of the date of injury. Other restrictions also apply. Work injury damages are restricted to those persons that are significantly injured (at least 15 per cent of whole person impairment), and what may be recovered is limited to past loss of earning and future loss of earning capacity up to pension age. If you believe you have an entitlement to make a claim under common law, you should immediately contact the SDA Information Centre to arrange for legal advice. Government Assistance If you are unable to return to work and are awaiting an insurer s decision regarding the liability of your claim, or you have received a reply from the insurer denying your claim, there may be various Government benefits available to you to assist during the waiting period. Weekly Wage If you qualify for benefits under the social security system (sickness benefits, invalid pension, unemployment benefits, widow s pension, etc), you are entitled to PAGE 24

25 receive such payments while awaiting the final outcome of your claim. You are required to refund the money to Centrelink should the outcome of the claim be favourable to you and you are awarded compensation. Application for such benefits and further inquiries can be made at local Centrelink offices. Medical expenses When a claim is denied, you may be required to meet all the medical costs associated with the treatment of your injury. Some of these medical costs may be recovered from Medicare. You may be required to give details regarding your claim, including proof that your claim has been denied before being eligible for such benefits. All initial enquiries and claims should first be made at your local Medicare office. The manager of workers compensation at the Medicare Head Office in Sydney may be contacted if necessary. If you are a member of a private health fund, you may also be able to claim the costs of medical treatment and other medical expenses until such time as the liability of your claim has been resolved. All initial queries should be forwarded to your private health fund. YOUR GUIDE TO WORKERS COMPENSATION Dismissal While on Workers Compensation Under New South Wales law, an employer cannot dismiss you during the first six months after you first become unfit for employment because of your injury/disease. Under federal laws, an employer cannot dismiss you due to a temporary disease or injury, provided they are notified of the injury and expected length of absence. This does not mean that all claimants may be dismissed immediately once they have reached the end of the six-month period, or once an element of permanency associated with the injury is established. New South Wales workers compensation laws require that an employer provide rehabilitation, where practicable, for injured workers to enable them to return to some form of paid work and to ensure that all rehabilitation attempts have been exhausted before dismissing a worker. Injured workers may jeopardise their employment if they actively refuse to participate in a legitimate rehabilitation plan authorised by their treating doctor. However, workers compensation claims that are in dispute or are being conciliated must not be used as grounds for dismissal. PAGE 25

26 Resignation While on Workers Compensation The basic principle to be observed by anyone suffering from a work-related injury is never resign. A worker who has resigned may put at serious risk any entitlements to continued weekly payments and rehabilitation treatment, and may also experience difficulties in attaining future employment with an employer who is not liable for the injury. In any event, contact the SDA Information Centre before taking any action in this regard. Taxation of Compensation Benefits You are liable to pay income tax on any weekly compensation and any dependency payments in the same way as if receiving the money as a wage. If the insurance company is paying you directly, you should complete a taxation Employment Declaration form and make sure the insurer receives it. At the end of each financial year, you will receive a PAYG Payment Summary (previously known as a group certificate) as if you were receiving wages. You are not liable to pay taxation on any of the following benefits: Lump sum compensation for loss of a specified bodily function or limb. Lump sum compensation for pain and suffering. Lump sum payment to dependants in respect of a deceased worker. Any lump sum received for common law damages. PAGE 26

27 Workers Compensation and Superannuation Contributions Generally, your employer is not required to pay superannuation contributions in relation to workers compensation payments while you are off work. If you return to work on light duties, contributions are payable for those hours actually worked. For more details, contact the SDA Information Centre. Total and Permanent Disability Payments and Superannuation While workers compensation and superannuation provisions are not directly linked, the total and permanent disablement insurance that you may have elected to take in your superannuation scheme can be an additional claim for Union members who are suffering from a disease or injury. Most superannuation funds provide insurance against the total and permanent disablement of a member of the fund. The requirements for this insurance vary from fund to fund. Some funds provide insurance as a part of the superannuation scheme while others allow individual members of the fund the freedom of choice in selecting coverage and insurance. Most funds stipulate a number of requirements for eligibility for this benefit. For example, the common requirements are: That you are injured to the extent where you are unable to return to work for which you are reasonably qualified and trained this must be supported by medical evidence. Some funds require that you be absent from paid employment for at least six consecutive months (this may be longer in the case of some funds). That you are unable to return to any form of paid work for which you are reasonably suited by training, education and experience, within the foreseeable future. The relevance of this benefit to any superannuation fund members, including workers compensation claimants is that, if you meet the requirements listed above, you may be eligible for the total and permanent disablement benefit. If you have received this advice you should contact the SDA Information Centre to ensure a claim for the total and permanent disablement benefit is lodged as soon as possible. PAGE 27

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