Maurice Blackburn

Workers Compensation is a complicated area of the law and it is important that you get advice about making a claim.

What injuries or illnesses are covered?

Workers Compensation can be claimed for an injury that arises out of, or in the course of, employment.

Employment must also be a significant contributing factor in cases of:

• recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury
• disease, heart attack injury or stroke injury, or
• disease contracted in the course of employment. These diseases may include asthma, cancers and arthritis.

What injuries, suffered while traveling, are covered?

Injuries suffered while traveling for work are covered by Workers Compensation. For example, a truck courier who is injured while traveling between deliveries is covered.

Injuries suffered while traveling to or from work, a trade school, an education course, a medical appointment or a rehabilitation course are also covered by Workers Compensation.

These injuries may result in a separate entitlement to damages if they arise from the negligence of another motorist within the ACT.

If you need advice about whether an injury is compensable, contact Maurice Blackburn.

How can I claim compensation?

If you suffer an injury at work, you:

• must notify your employer of the injury as soon as possible, either by advising them or by entering it into their injury report book
• should report any injury, even if treatment is not required immediately, as it will help your claim should the injury get worse
• should keep a copy of your employer's written acknowledgement that they have been advised of the injury
• must complete a Workers Compensation claim form if medical treatment or time off work is needed - the claim should be made as soon as practicable, and, wherever possible, while the you are still employed
• should consult a doctor, who can provide an initial Workers Compensation medical certificate, if you need time off work (if you are only claiming medical expenses, you do not need a Workers Compensation medical certificate)
• must give your employer your Workers Compensation claim form, including the single medical authority, and the initial Workers Compensation medical certificate (if time off work is claimed)
• should keep a copy of all documents and record the date they are delivered to your employer (the claim form must be signed and dated by your employer), and
• should send a copy of the claim to the Workers Compensation Insurer, even when serving the claim on your employer (claims must be served on the employer or, if the employer refuses to accept the claim, on the Workers Compensation Insurer).

Claim forms are available from employers, insurers and Maurice Blackburn offices.

You may use accrued leave or claim eligible Centrelink benefits while you wait for your claim to be decided. If the claim is accepted, you must reinstate accrued leave and repay Centrelink as appropriate.

The claims process

The Workers Compensation Insurer:

• has 30 days, from the date of injury, to accept or reject the claim
• is considered to have accepted the claim for weekly payments, if a decision in writing is not provided within 28 days of its receipt of the claim
• is considered to accept a claim for medical and like expenses, if it does not reject the claim within 28 days (you should get legal advice if your claim for medical expenses is rejected)
• may send an insurance investigator to interview you (you are required to provide information to an investigator but should get legal advice before you do so)
• will request, in most cases, that you attend one or more medical examinations (you must not unreasonably refuse to attend these examinations, or the insurer may refuse compensation or suspend payments)
• in most cases, notify you of a decision to reject, reduce or terminate benefits; or a decision to refuse surgery (in many cases, you should dispute these decisions), and
• must take all reasonable steps to give a you the information you request.

If the Workers Compensation Insurer denies liability for compensation, you may commence proceedings in the ACT Magistrates Court. The Magistrates Court can also determine any disputes about refusal or failure to provide information by the Workers Compensation Insurer.

You should contact Maurice Blackburn for an opinion about commencing proceedings before the ACT Magistrates Court.

Your responsibilities

Your right to compensation depends on you participating in rehabilitation, making every reasonable effort to return to work, attending medical and vocational assessments, and/or making every reasonable effort to obtain suitable alternative work.

The employer's responsibilities

The employer is responsible for establishing an occupational rehabilitation program and a return to work plan. This plan should be in writing and include the date of commencement, the details of the offer of employment, the appropriate steps to enable a return to work, and any occupational rehabilitation service necessary to maintain the return to work.

You should not accept or reject a return to work plan without first consulting your treating doctor. An unreasonable refusal of a job offer may result in the termination of benefits.

An employer is obliged to re-employ an injured worker in an equivalent job or suitable employment within six months from the date of injury, provided the you are substantially fit for your pre-injury duties. Suitable employment is employment for which you are currently suited, given your age, education, skills, work experience, place of residence, pre-injury employment and incapacity.

Benefits

The basic entitlements under the Workers Compensation Act are for weekly payments and payment of medical and like expenses. The level and nature of benefits depend on the date of injury and the classification of your capacity.

Weekly payments

The level of weekly payments is based on your pre-injury average weekly earnings. These are calculated by looking at your average weekly rate of pay, including overtime and shift allowances.

After the first 26 weeks of incapacity, should you remain fully incapacitated, you will be entitled to a maximum of 65% of your pre-injury weekly rate of pay.

Medical expenses

You are entitled to treatment from a doctor of your choice and do not have to be treated by the work doctor.

The Workers Compensation Insurer pays:

• reasonable costs of medication, hospital, personal and household services (which may include home help, lawn mowing, attendant care, psychological counselling and modifications to home and car)
• occupational rehabilitation (provided by an approved rehabilitation provider)
• ambulance services, and
• travel expenses for attending medical treatment, rehabilitation and examinations arranged by the Workers Compensation Insurer.

When claiming medical and like expenses, you should submit the details in writing to the Workers Compensation Insurer and keep copies of the documents.

If you require surgery or hospitalisation, your treating practitioner must make the request in writing. The Workers Compensation Insurer should respond within a reasonable period and may require an examination by a doctor of its choice, to determine liability. If you have not received a response within 28 days, contact Maurice Blackburn.

You can attend medical treatment during work hours. However, where possible, this should be by agreement with the employer as it may be considered unreasonable to attend medical treatment during working hours if other arrangements are possible.

Lump sum claims

If you suffer a permanent impairment arising from injuries sustained during work you are entitled to claim a lump sum under Section 51 of the Workers Compensation Act, as well as any weekly payments, and medical and like expenses.

The maximum lump sum for permanent impairment is $122,867.44 for a single impairment and $184,301.15 for multiple impairments. An entitlement to impairment is measured according to the part(s) of the body affected and the percentage of whole-person impairment.

You cannot lodge a claim within the two years of the date of the injury without leave of the court.

Common law negligence claims

You can make a common law claim for damages against an employer or third party, providing you can prove negligence or fault of another party. You only have three years from the date of injury to claim common law damages. This is a complex area of the law, and you should consult Maurice Blackburn early on to protect your rights.

In a common law claim, you, depending on the nature of your injury, are typically entitled to:

• general damages (compensation for pain and suffering)
• past economic loss (net past loss of earnings)
• future economic loss (an amount determined on an actuarial basis)
• past medical expenses
• future medical expenses, and
• past and future domestic care and assistance.

During many of the stages of common law claim, your rights may be affected by the decisions made. Contact Maurice Blackburn for advice.

Death claims

If you die while working, your dependents can claim compensation. Anyone may be classified as a dependant, provided they can show that:

• they were wholly, mainly or partially dependent on your earnings, or
• would have been dependent but for your injury.

In determining whether your partner is wholly or mainly dependent, their personal income is not taken into account. Children are considered dependent when they are under the age of 18 or they are a full-time student under the age of 21. Dependants can claim a share of a maximum lump sum of $184,301.15, in addition to weekly pensions.

The weekly pensions may be paid fortnightly, monthly, quarterly or annually, as determined by the Workers Compensation Insurer. In some cases, the weekly pension payments may preclude recipients from any social security benefits. Any payments to dependants must be approved by the ACT Magistrates Court.

If you die due to your employer's negligence, your dependants may have a right to claim damages from your employer to compensate for the loss of income that you would otherwise have provided to them.

It is important that the dependants of a deceased worker get legal advice. Contact Maurice Blackburn for assistance with making a death claim.