What is Workers' Compensation?
Workers' compensation provides workers with weekly payments and other benefits in respect of an injury or disease sustained at work.
Injured Workers Entitlements
Weekly Payments (in lieu of salary)
The maximum weekly payment all workers can receive is $1,904.40 gross. Therefore if you are on a teacher’s salary scale which pays more than $99,028.80 per annum you will be disadvantaged financially while in receipt of workers’ compensation payments.
The maximum compensation payable to a worker in weekly wages and/or lump sum settlements is called the Prescribed Amount. The Prescribed Amount is indexed every July 1 and is currently $168,499.00 (as at July 2008).
Workers with a permanent total incapacity for work may be awarded an extension to the Prescribed Amount up to $50,000 if the Conciliation and Review Directorate of WorkCover considers that their financial and social circumstances justify the additional amount.
Injured workers are entitled to payment of reasonable hospital, medical and ancillary expenses resulting from the disability. The maximum entitlement is $50,550.00 (as at July 2008).
Funding for approved vocational rehabilitation is available to help injured workers return to suitable employment. The maximum allowance is $11,795.00 (as at July 2008).
Other various allowances are available eg travel, funeral, dependent children etc. Please ask an SSTUWA Organiser for more details or an SSTUWA appointed lawyer.
Lump Sum Payments and Redemption
Workers with permanent total or partial disabilities may be able to negotiate a lump sum settlement rather than continue on weekly payments for long periods.
Redemption's are subject to the following conditions:
- The worker must have been in receipt of weekly payments for six months;
- The worker and employer agree to the redemption and the amount of the lump sum;
- The worker will automatically waive their common law rights; and
- The Director of the conciliation and Review Director are to ensure the worker is aware of the consequence of redeeming their claim.
Once a worker has redeemed their claim they can no longer access medical expenses, and social security payments are affected.
Schedule 2 Lump Sum Payments
When an injury results in permanent loss of use of part of the body, an injured worker may be entitled to a lump sum if settlement of the claim even if they have returned to work. The maximum benefit is the remainder of the Prescribed Amount. Benefits are payable according to the percentage of impairment as assessed by a medical practitioner.
How Do You Make a Claim?
Visit a medical practitioner
- 2. Obtain workers' compensation first medical certificate from your medical practitioner.
- 3. Obtain workers' compensation claim form from your employer. For Department of Education employees these may be obtained from your workplace or from central office. TAFE employees should contact the personnel department of their college.
- 4. If you are unsure how to fill in the forms contact your District Organiser at the SSTUWA for assistance.
- 5. At the end of the form there is a medical information consent authority to be signed. Currently we are advising members not to sign this but to attach the following signed consent. This is on advice from our legal advisers due to problems our members have experienced in accessing copies of medical reports about themselves.
“I, (members name), authorise any Doctor who treats me to provide a medical report concerning my medical condition in relation to my claim for workers’ compensation to my Employer or its Insurer on the express basis that the Insurer or Employer will provide to me any report obtained pursuant to this Authority upon request by me. By using this medical Authority, The Employer/Insurer agrees to provide to me copies of any reports obtained pursuant to this Authority”
- 6. Keep information provided very factual. Do not provide written statements to the employer, insurer, or any investigator without advice from the Union. (This is particularly important for stress claims arising from conflict with colleagues or that may involve information on criminal or statutory offences).
- 7. Only provide names of witnesses if you feel that the knowledge that they can provide will be helpful to your case. It would be worthwhile asking their permission first.
- 8. Make copies of all documentation for your own records. Send completed application form and workers' compensation first medical certificate to your employer.
9. Make a note of the date the application was submitted.
NB: It is only possible to make a workers' compensation claim by completing the form, attaching the correct medical certificate and lodging it with the employer. You have not made a claim just because you have told your supervisor that you are making a workers' compensation claim.
What Happens Next?
- 1. Riskcover ( the employers insurance company) and the employer will contact your doctor and specialists involved in your case for relevant medical information.
- 2. The insurance company may make an appointment for you to be examined by a specialist of their choice. You must attend this appointment. Sometimes it is possible for you to take a support person with you but this is not an absolute right. You should contact the specialist to confirm whether this is possible.
- 3. The insurance company may appoint an investigator or insurance assessor to gather further information on your case. This may involve them visiting your workplace to talk to persons involved in the case.
- 4. The investigator may contact you for an interview. You should refer the investigator to your lawyer if you have sought legal advice on the matter or ask them to submit any request for information in writing. You are required to give reasonable information to the insurance company but you do not have to talk to the investigator.
- 5. The insurance company must respond to you within 17 days of submitting the claim to the employer. They may deny or accept the claim or notify you that they cannot make a decision as they require further information. Some claims take an extended period to resolve particularly if they are in respect of a stress related illness.
- 6. The process can be speeded up if you are experiencing hardship etc. and you should contact the union for a referral to a lawyer to assist in lodging a dispute.
- 7. If your claim is not accepted it is possible to appeal through a conciliation and arbitration process. You need to discuss this process with the SSTUWA lawyers.
- 8. You may decide to drop the claim at any stage.
- 9. If your claim is accepted any sick leave which you have utilised for this illness will be re-credited to you. If you normally earn more than $1,904.40 gross per week you will have to repay the difference between that sum and what you have been receiving while on sick pay to your employer.
- 10. You will be referred to a rehabilitation counsellor for assistance to return to work. You have the right to choose your own rehabilitation provider.
- 11. An SSTUWA organiser can assist you regarding the rehabilitation process.
- Keep a diary of any significant work related incidents.
- Keep copies of all medical bills, including those for prescription drugs. Also keep a record of travelling expenses related to treatment etc.
- Do not undertake any form of work if you are on leave due to your ill-health. This includes voluntary work, work in a family business etc. Only work undertaken as part of a structured rehabilitation plan approved by your medical practitioner is allowable.
- You are entitled to copies of any medical reports given to the insurance company. You should make a request in writing to Riskcover.
- You are not entitled to copies of the investigator's report.
- ou do not have to submit to any form of medical treatment other than that provided by your own medical practitioner
- You must submit medical certificates and visit your doctor regularly throughout any period of absence from work.
- A workers’ compensation claim must generally be made within 12 months of the date of injury. However, leaving your workers’ compensation claim for long periods after the date of “injury” is not advisable and may prejudice your claim.
Access to Common Law Damages
- Workers that have been injured due to the negligence of their employer can still access common law if they have a prescribed level of injury.
- Workers who wish to claim common law and for whom it is agreed or determined their degree of ‘whole person impairment’ (WPI) is 15% or more, and less than 25% must elect between statutory benefits and common law.
- The election must normally be made within 12 months from the date weekly payments commenced.
Before it can be decided whether you qualify for a common law claim under these new laws, you will need to have obtained an assessment from an approved medical specialist specifying the WPI you have sustained in the injured part of your body.
If a worker does elect to pursue a common law claim, their entitlement to Workers' Compensation weekly benefits will reduce and other benefits will cease from the date the election is registered.
If the worker is successful in the court, the maximum damages they will be entitled to is $353,850.00. From any award made by the Court they will have to repay any Workers' Compensation benefits and social security payments already received.
Workers with a WPI of 25% of greater must also elect to pursue a common law claim within 12 months. No cap on damages applies to these workers.
It would be advisable to consult with the SSTUWA lawyers as soon as possible if you believe you may be eligible to pursue common law damages. This service is free of charge for current financial members of the SSTUWA. However, legal costs associated with common law claims are not covered by Union Cover.