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Work Accident and Workers Compensation
Workplace accidents can be very stressful for the injured person and the employer. Whilst people have a general idea of the process involved in a workers compensation claim, what they tend to forget is that sometimes, it is not just about receiving treatment and returning to work as quickly as possible. At times, the injuries sustained as a result of a workplace accident could be a lot more severe and have a lasting impact on your capacity to return to normal work duties or even everyday activities. The process of recovering workers compensation can be a lot more complicated than you think. At Jameson Law, we understand that for most people, their job is their single source of income and they will do whatever it takes to return to work as soon as possible, despite their serious injury to simply support themselves and their families. However, we also get that this does not necessarily have to be the case!
Workers Compensation is designed specifically to protect workers, ie employees when they sustained work-related injuries and ensure that they have sufficiently recovered before returning to work and/or a afforded the opportunity to return to suitable duties without sustaining financial hardship. On the same token, work-related accidents can sometimes lead to serious injuries that require extensive and costly medical treatment. As part of your workers compensation claim, you are also entitled to reasonable and necessary treatment expenses that will aid your recovery and rehabilitation.
When you are injured in the workplace, sometimes you are hesitant to ask about your rights and entitlements due to fear of termination or simply because you do not want to harm your employer. Rest assured. Legally, your employer should not terminate your employment or make your redundant due to your work-related injuries. However, if this were to happen, you are entitled to receive weekly benefits from the insurer and potentially compensation for future economic loss as a result of your incapacity for employment. Employers generally have workers compensation insurance and it is their insurer that will cover the cost of your claim.
Work Injuries and your entitlements
As with other personal injury claims, your entitlement to make a claim for workers compensation arises from the fault or negligence of others, in this instance, your employer. If you have sustained work-related injuries as a result of the nature and conditions of your employment and/or a workplace accident, you may be entitled to recover one or more of the following components of workers compensation (also known as heads of damages):
Compensation for property damage
Compensation for pain and suffering
There are also entitlements for the direct family of a victim of a fatal accident in the workplace. If you have lost a loved one who was involved in a work-related accident which has resulted in a fatality, speak to one of our lawyers today about your entitlements under workers compensation and/or personal injury law.
The Workers Independent Review Board (WIRO) cover legal fees and disbursements incurred by a Lawyer in Workers Compensation Claims however only if they are an ‘Approved Lawyer’ by WIRO. At Jameson Law, our Lawyers are approved by WIRO and we have made it our policy that we charge our client’s nothing for the work we do on their workers compensation claim and nothing for our disbursements. This means we run your workers compensation claim from start to end and YOU PAY NOTHING. There is no catch and no disclaimers!
The Workers Compensation Act is NSW legislation meaning that the laws of other states such as Queensland, Victoria and Western Australia are different (State Government Law).
What is a Workers Compensation Claim?
Simply put, workers compensation is what you are entitled to receive to compensate your for workplace injuries your sustain as a result of an act or omission (failure to act) by your employer, co-workers and or agents. This may include failure to conduct risk assessments, failure to comply with work health and safety requirements, unsafe working conditions, failure to ensure workplace safety, failure to provide protective equipment, failure to provide safety training, failure to maintain safe work environment, exposing you to unsafe work activity and the list goes on…
Basically, your employer has a duty to ensure your well being in a safe workplace. Any breach of this obligation by your employer towards you may expose them to a workers compensation claim.
However, as with any other personal injury claim, there is a second component that must be satisfied to entitle you to make a workers compensation claim – and that is damages. This means that in order to make a claim, you must have suffered an injury which has resulted in a loss. This loss could simply be that you require treatment which will expose you to an expense or you require time off work and therefore you will incur wage loss.
What if my injury happened over time?
Many of us are aware that if you are injured in a work-related accident, you are entitled to workers compensation. However, what is not commonly known is that an injury that accumulates over time as a result of working conditions or ongoing occurrences can also entitle you to a workers compensation claim. This may be an injury to your mental health, ie depression or anxiety or physical in nature.
Safe work Australia is the regulator for work health and safety. It covers the requirement for both physical and psychological well being in any given workplace.
Claims that are made regarding a workplace injury that occurred over time is known as a nature and conditions claim. Examples of such psychological claims include bullying, sexual harassment, verbal assault all of which have been reported to management and or documented previously however no action was taken to rectify the situation and this has now resulted in an approved psychiatric condition such as depression, anxiety, post-traumatic stress disorder etc.
Claims that relate to physical injuries sustained as a result of the nature and conditions of a work environment include repetitive heavy lifting without provision of proper equipment (this may be a failure to implement a safe methodology to complete tasks), long work hours without safety / ergonomic equipment, such as ergonomic office chairs and constant exposure to loud machinery without provision of safety equipment such as earplugs.
If you are unsure whether you are entitled to claim compensation for an injury that you have sustained over time, speak to us today about your work-related injuries for free advice.
What is Lump Sum Compensation?
Lump sum Compensation refers to a non-economic loss that you may be entitled to claim as part of your workers compensation claim; that is your entitlement to compensation simply because you have sustained injury. This type of compensation is not designed to compensate you for your injury because as we all know, you can not put a price on your health, however, it is more a means of compensation for your loss.
In order to qualify for this component, you are required to undergo an independent medical examination (IME) by a medico-legal doctor to determine whether your whole person impairment exceeds 10%. If your degree of permanent impairment is assessed at 11% or greater, you will be entitled to a lump sum payment which is set out in the guidelines. Each percentage equates to a sum of money, the minimum of which being $15,400 (11%) and the greatest being $220,000 (75% or over).
This type of claim is made under section 66 of the Workers Compensation Act. The insurer is entitled to have you assessed separately before making a decision on your entitlement. If the insurer disputes that your degree of impairment is greater than 10%, your claim will be referred to the workers compensation commission for a determination to be made by an approved medical specialist (AMS) whose decision is binding.
One thing worth noting is that workers compensation relates only to one part of the potential claims you may be entitled to make if you are involved in a work-related accident. If your condition is assessed at 15% whole person impairment or greater, arising from your workplace injuries, you may be entitled to make a claim for work injury damages. This is a common law claim for compensation relating to you future loss of income of earning capacity if you are found to have reduced or no work capacity. If you think this may apply to you, speak to us about your condition. A Jameson Law, we will advise you whether you are entitled to this claim when we assessed your workers compensation claim.
Note: Due to the recent restrictions as a result of the coronavirus (COVID), medical examinations we cancelled or postponed and therefore claims have unfortunately been delayed. Noting that restrictions have now eased, assessments have been reinstated however there is a minor backlog in medical appointments. All personal injury claims require medical examinations and therefore coronavirus (COVID-19) has had some impact on the time frame of a claim. HOWEVER, do not delay in lodging your claim if you have been involved in a workplace accident as there is a time limit within which to lodge your workers compensation claim. There is also a strict 3-year limitation period within which to initiate Court proceedings.
What if the insurer disputes my claim?
The Workers Compensation Commission is responsible for resolving disputed between the worker (referred to as the applicant) and the respondent (being the employer/its workers compensation insurer).
The types of disputes that may arise in a claim are as follows:
- Weekly benefits where liability in dispute
- Weekly benefits where work capacity decision in the dispute
- Medical expenses
- Domestic assistance
- Compensation for property damage
- Lump-sum compensation where liability in dispute
- Lump-sum compensation where the degree of permanent impairment in dispute
- Compensation for pain and suffering
What is the process of a workers compensation claim?
Were you involved in a work-related accident? You sustained an injury at work through no fault of your own.
Lodge Workers Compensation Claim Form with your employer.
Establish whether and how your employer is liable for your work-related injuries, for example, failure to provide safety training, failure to provide a safe work environment, failure to provide safety training, failure to provide safe working conditions, protective equipment etc.
Medical Record Check
Obtain Medical Records and Doctor opinion about your condition.
Establish what type(s) of claim(s) to pursue, ie weekly benefits, medical treatment expenses, lump sum etc.
Undergo Independent Medical Examination and serve documents on the insurer. Wait for a response whether the insurer agrees accepts your offer.
In the event the insurer disputes your offer, lodge application to resolve a dispute (ARD) with the workers compensation commission and obtain an independent assessment for that type of claim. This determination is binding.
Work Injury Damages
If you have been assessed at 15% or greater degree of permanent impairment, you must proceed to work injury damages. Visit our page on Work Injury Damages [hyperlink it] for more information.
I am an employer. How do I defend a worker’s compensation claim?
If you are an employer, such as a small business, you know that your employees are one of your greatest assets. When things go wrong and a worker suffers a serious injury in the course of their work however, this is also one of the major risks faced by businesses in Australia. Employees who have a personal injury claim for a serious injury (including psychological injuries) that was incurred while working, may be entitled to make a worker’s compensation claim against their employer, which owes employees a duty of care to provide a safe workplace free of hazards.
Compensation for workplace injuries occurring in NSW for example, can be sought by employees for the following:
- compensation for any wages lost as a result of the workplace injury;
- medical treatment costs, including rehabilitation and hospital costs;
- any assistance required for the employee’s return to work; and
- in some instances, compensation for non-economic loss.
Generally, as an employer you will have access to cover through some form of insurance policy held through an insurance company. Such an insurance policy will generally indemnify an employer for the lump sum payment made in respect of a worker’s compensation claim. This includes those employed by private enterprises (who should always have insurances in place which deal with potential worker’s compensation claims relevant to the business), and government agencies.
The insurance claims process, and how insurance claims interact with any formal compensation claim made by an employee, can be a complex system to navigate. It is critical that you obtain high quality legal advice so that you can successfully defend a worker’s compensation claim where it is unfounded, and comply with your own obligations as an employer in properly handling what may be a sensitive claim regarding a serious injury. Failing to handle such a claim can result not only in financial damage to your business, but detrimental and ongoing reputational damage.
One such way of minimising damage to your business is through the defence of “contributory negligence”, which is available in all common law claims (and statutory negligence claims) in which an injured person can be shown to have also contributed to the personal injury or impairment they have suffered. Similarly, if a claimant’s medical records indicate an underlying or pre-existing personal injury which you were not aware of, this may limit the amount of compensation available.
In addition to worker’s compensation claims, employers should be wary to insure against any actions made by their employees which might attract “vicarious liability”. For a free consultation to ensure your business is protected from these claims, reach out to our expert legal team today.
Frequently Asked Questions.
According to Safework Australia, the average workers comp settlement in Australia is $11,500. It is unfortunate that in many cases, insurers and self-insured employers often do not consider the permanent and ongoing damages that will be suffered by the employee, and therefore do not consider it in their compensation amount. Do not get caught out having to pay for a surgery or associated expenses in the future due to a workplace injury. Get legal advice and representation. There is really no excuse… under the workers compensation scheme, Jameson Law will process your claim for free and WIRO an independent body will pay for disbursements and our fees. You do not pay anything out of your pocket and of course not a cent out of your settlement monies.
Employees who have an expert personal injury lawyer on their side often get more compensation. Firstly under workers compensation the employee does not pay any legal fees whatsoever. That’s right, WIRO an independent body covers all legal fees and disbursements. This also applies to the settlement monies, where Jameson Law as your representing law firm does not take a cut. Couple this with solid negotiation tactics and a very strong case; and you have yourself a fair and just settlement to cover you for your past, present and your future medical expenses and damages.
There are two basic requirements you need to meet in order to look into workers comp. They are:
- You must be an employee of a company.
- You must have been injured at work or as a result of job-related duties.
All employees are eligible no matter your status, full-time, part-time, casual working, temp, through labour hire etc. Very often volunteers also fit within workers comp.
If you are an independent contractor, freelancer things might be a little more complicated. Touch base with us and we will look into your matter and find an amicable solution.
Anytime that you are working for your employer you are entitled to workers compensation – including work from home arrangements during Covid. If you have a car accident picking up or dropping off supplies for the office, pains and aches due to a lack of ergonomics at your home office, or trip down the stairs at your Christmas party – all of these scenarios may entitle you to workers compensation. Speak to an expert Personal Injury lawyer today.
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