A Guide to the Workers Compensation System in NSW

http://council.labor.net.au

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A Guide to the Workers Compensation System in NSW

For Union Organisers, Delegates & Activists.

http://council.labor.net.au

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Authorised Officers

• What are their powers?

• What are certificates of currency?

• What to look for in an employers policy?

http://council.labor.net.au

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Workers Compensation

• What is workers compensation?

• Who pays for it ?

• How are premiums calculated?

• What effects premiums?

http://council.labor.net.au

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Self Insurers

• What are their obligations?• Are there any differences in insurance

arrangements?• Does it impact on my workers comp?• What are the licensing arrangements?

http://council.labor.net.au

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Workers Compensation

• When and how are you covered? • What about journey claims?• Recess claims• Trade Union Training Meeting• Strike Meeting• Do you have to prove fault?

http://council.labor.net.au

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Workers Compensation (continued)

• When and how are you covered? • What about journey claims?• Recess claims• Trade Union Training Meeting• Strike Meeting• Do you have to prove fault?

http://council.labor.net.au

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Workers Comp claims• Who is entitled to claim?

– Employees– Casuals– Deemed employees

• When and what for?

http://council.labor.net.au

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Injuries Outside NSW

• Conduct of a worker.

• Aggravation of an injury or illness

Wilful Misconduct • Self-inflicted injury

http://council.labor.net.au

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What to do if you are injured at work

• Notifying injuries

• Employers obligation to report injuries

• Significant Injury

• Putting in a claim

http://council.labor.net.au

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Workers Compensation • What is a notification number?

• What are provisional liability payments?

• When do payments commence?

• Are self insurers any different?

http://council.labor.net.au

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Medical and Hospital Treatment

• What about medical or hospital treatment?

• Can I still choose my own doctor?

http://council.labor.net.au

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Rules for Paying Claims• What is a “reasonable” excuse

– Must send a letter detailing the exact reasons for not paying the claim

• What next?– Invite a claim– Contact union/CAS

http://council.labor.net.au

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What the injured worker must be told

• The insurance company has decided to pay – what happens next?

• What if the insurance company decides to not pay within 7 days?

http://council.labor.net.au

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BenefitsTotal Incapacity

Partial Incapacity

Suitable Duties

Fit for suitable duties but not at work

First 26 weeks

CWWR

After 26 weeks

Statutory Rate

http://council.labor.net.au

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Definition of ‘First 26 Weeks’ for the avoidance of doubt:

The first 26 weeks is calculated on periods where any weekly compensation benefit is paid.

For example:? - off work 2 weeks; back 3

months. Do not count the 3 months unless being paid make-up ?

http://council.labor.net.au

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Benefits - Total Incapacity

• First 26 weeks

• After 26 weeks

http://council.labor.net.au

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Casuals

• What rate are they paid?

• How is this determined?

• What benefits are they entitled to?

• Two contracts of employment

http://council.labor.net.au

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NSW

Partial Incapacity (1)

• Back at work on suitable duties

• First 26 weeks

• After 26 weeks

http://council.labor.net.au

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Partial Incapacity (2)

• No Suitable Duties available

• First 26 weeks

• 26 weeks to 52 weeks

(section S 38)

http://council.labor.net.au

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Reviews / Assessment

• One Year (Sec 40 Fit for Suitable Job Assessment)

• Two year (52 Review)

http://council.labor.net.au

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Benefits

Statutory RateAfter 26 weeks

CWWRFirst 26 weeks

No Suitable duties available

Suitable Duties

Partial Incapacity

Total Incapacity

http://council.labor.net.au

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IR Act 1996 – Protection of Injured Workers

• A worker cannot be terminated because they are not fit for work due to injury within six (6) months. Sec 99 (1) (a)

• If the worker has an entitlement under a Commonwealth or State Industrial Instrument for “accident pay” then the period during which they cannot be dismissed increases to the period during which they are entitled to “accident pay”.

• sec 99( 1) ( b)

http://council.labor.net.au

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Reinstatement Of Injured Workers

• If a worker becomes fit within 2 years of being terminated the union apply for reinstatement

• Worker must produce medical evidence – fit for prior job.

http://council.labor.net.au

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Leave Entitlements

• Annual Leave• Sick Leave or Accident Pay• Public Holidays• Long Service Leave• Maternity Leave

http://council.labor.net.au

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Medical Benefits

• Hospital and Medical Treatment

• Chiropractor

• Physician

• Rehabilitation, ie: workplace assessment

http://council.labor.net.au

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NSW

Miscellaneous Benefits

• Property Damage

• Travel Property

• Domestic Care

http://council.labor.net.au

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Permanent Impairment

• New Guides for assessing permanent injury

• New Formula @ = $ amount max is $200,000. For 75%+• 6%+ threshold for hearing loss• 15% to access psy & psy injuries

http://council.labor.net.au

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Permanent Impairment (2)

• Injuries not previously entitled to lump sum - now covered.– Respiratory– Internal organs– Psychological and Psychiatric– Cardiovascular

http://council.labor.net.au

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Pain & Suffering

• Entitled to an additional lump sum / maximum $50,000

• Threshold is 10% or more to access this benefit

• 75%+ receive maximum lump sum

http://council.labor.net.au

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Common Law

• Must have 15% whole of body impairment • Applies to all claims beyond 27/11/01 • Disputes for 15 % threshold referred to the

Commission• Commission issues certificate – binding and

conclusive

http://council.labor.net.au

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Common Law (2)• Claim for economic loss- income loss only • All other entitlements i.e. lump sum for pain

and suffering etc - under stat scheme• Worker’s entitlements to weekly and medical

benefits no longer continue until the claim is settled

• All benefits cease after settlement

http://council.labor.net.au

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Commutations/Lump Sum Buy Out

• 15% threshold whole of body

• On compensation for 2 years

• All Rehabilitation and return to work options have been exhausted

http://council.labor.net.au

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Disputes Module

http://council.labor.net.au

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Dispute Resolution

• Workers Compensation Commission

• Role of the Workers Compensation Court

• What claims will be dealt with by the Commission and the Court

http://council.labor.net.au

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PresidentPresident

Deputy PresidentsDeputy Presidents Deputy PresidentsDeputy Presidents

RegistrarRegistrar

Arbitrators & Medical AssessorsArbitrators & Medical Assessors

Expedited DisputesExpedited Disputes Medical Medical AssessmentsAssessments

Legal Legal

DisputesDisputes

http://council.labor.net.au

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How will the New Commission Operate?

• Disputes fall into categories:– Expedited – provisional liability– Return to Work– Medical– Complex

• Liability causation• 52A• Section 40

http://council.labor.net.au

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The New Dispute Resolution

• Expedited Assessments - Provisional Liability

• Return to Work

• Complex Legal Disputes

http://council.labor.net.au

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Interim Payment Directions

• No decision with required timeframe

http://council.labor.net.au

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Suitable Duties

• Unions can pursue these disputes in the new Workers Compensation Commission

• Employer fails to provide suitable duties • Union/delegate identify suitable duties • Employer continues to refuse • Union files dispute in the Commission

http://council.labor.net.au

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Banning and Great Lakes Council 18.3.02 -IRCNSW- Harrison DP

•Relief unfair dismissal

•Dismissal due to injury

• Contravention of S99-Dismissal less than 6 months form first becoming unfit for employment

•Rehabilitation policy not followed.

• Held dismissal harsh, unreasonable and unjust.

• Reinstatement ordered, costs to Banning

http://council.labor.net.au

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Medical Disputes

• S 66 – Permanent Impairment

• S 67 – Pain & Suffering

• Stabilisation of a injury

• Other Medical Disputes

http://council.labor.net.au

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Appeals Against Medical Assessment

• A dispute is referred to AMS

• AMS opinion conclusive

• Workers have 4 grounds for appeal:

• Deterioration of condition

• Further information becomes available, ie: CTScan

• Assessment made on incorrect criteria

• Medical Assessment contains a demonstrable error

http://council.labor.net.au

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Medical Assessment Appeals

• Appeal panel 2 Doctors (AMS) & Arbitrator

• Hear appeal from binding decisions

• Worker represented by an Advocate

• Worker able to tell their story

• Pain & Suffering-Section 67 – dealt with separately

http://council.labor.net.au

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Complex Legal Disputes

• Liability denied weekly benefits medical, ie: physician

• S40 Assessment – 12 month benefit assessment

• S52 – 2 year benefit assessment