The Australian Workers' Union

If “yes”, you may have valuable entitlements to workers compensation and/or common law damages.

Workers compensation is the name given to payments made to workers who are injured or suffer a disease arising from their work; or made to dependants of workers who may be killed or die through a work injury or disease. There are three kinds of payments. Weekly payments, payments for medical and rehabilitation costs and lump sum payments. It does not include payments for pain and suffering.

workers suffer an injury arising out of and in the course of their employment and the injury occurs during attendance at the worker’s place of employment on a working day; or

workers suffer a disease arising out of and in the course of their employment and for which employment was the major contributing factor.

Workers compensation is not payable in respect of a disease which arises principally from reasonable action taken in a reasonable manner by an employer in relation to a worker. This covers all diseases, although it is obviously targeted at “stress claims”.

Workers compensation is not payable where a worker has been injured at work due to serious and wilful misconduct (unless the injury results in the death or serious and permanent incapacity of the worker), or to an intentional self-inflicted injury.

If a worker is injured on the journey to or from work, compensation is not payable unless at the request or direction of the employer, or with the authority of the employer, the worker has taken a particular journey. The Motor Accidents Insurance Board continues to provide some cover for workers injured in motor vehicle accidents on a journey to or from work, however, conditions apply and legal advice should be taken shortly after such an incident.

It is essential that injury/disease is reported to the employer as soon as practicable. Payments can be denied or delayed by failure to do so. Most work places have accident/incident report forms which must be completed as well as specific workers compensation claim forms (available from the employer).

Care should be taken to fill out accident/incident forms and workers compensation claim forms accurately. If you are incapable of completing these forms accurately because of your injury, it is reasonable to delay completing the forms until you feel more able. Beware though that unnecessary delays in completing such forms may disadvantage you. Details of the accident and/or injury must be reported to a doctor also who then diagnoses the injury or disease and provides the worker with a workers compensation medical certificate. The workers compensation medical certificate must be given to the employer with the claim form.

If you want to claim workers compensation, you must lodge a claim form and medical certificate with your employer within six (6) months of the date of your injury/accident or within six (6) months of the disease becoming evident. Only in exceptional circumstances can a worker receive workers compensation if a claim was not made within six (6) months.

Once a worker has made a workers compensation claim, the employer has twenty eight (28) days to either accept or dispute the claim. If the claim is disputed, the employer must notify the worker in writing for the reasons for disputing the claim within twenty eight (28) days of receiving the claim. The employer must within twenty eight (28) days also notify the Workers Rehabilitation & Compensation Tribunal of a disputed claim. The Tribunal may by notice in writing require the worker and any other person to attend hearings and conferences at the Tribunal for the purpose of resolving the claim.

Yes. The right to receive weekly payments is subject to the continued production of medical evidence of an incapacity to work. Weekly payments should continue providing a medical certificate is provided to the employer certifying incapacity for work. The period of time that weekly payments are made is a maximum of 9 years from initial capacity.

Since the 30 th of June, 2004, weekly payments are determined according to “normal weekly earnings” (NWE) or “ordinary time rate of pay” (OTR), whatever is the greater. NWE and OTR have particular legal meaning and if you think you may not be receiving the right payment, you should seek legal advice. These weekly payments are subject to step-downs as follows:

100% of the weekly payment for the first 13 weeks of incapacity;

85% of the weekly payment for the period 13 weeks to 78 weeks of incapacity; and

80% of the worker’s weekly payment for the period beyond 78 weeks of incapacity and up to 9 years.

If a claim for compensation has been accepted, your employer must pay for the reasonable costs of medical treatment for the injury/disease to a maximum of 10 years. This is a separate entitlement to weekly payments. An employer is also obliged to meet the cost of rehabilitating injured workers back to their usual work or other types of work.

A worker may be entitled to receive lump sum compensation if an injury of a permanent nature has been suffered. Lump sum payments are made in accordance with assessed whole person permanent impairment under the Workers Rehabilitation & Compensation Act. The lump sum payments are in addition to weekly compensation.