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In June 2012 there were some significant legislative changes made by the O’Farrell Government that has enormous implications for all involved in the system. The objectives although primarily cost cutting by targeting injured workers compensation entitlements significantly affects other stakeholders such as treatment providers and employers as well.
Workers are affected in the following areas :
New Weekly payments
On the surface there are improvements in the amount of compensation injured workers will receive , particularly in the second period of benefits from week 13 to 130 (if he or she is not back at their preinjury job undertaking full duties).
WorkCover summarise the changes as follows
Benefits for new claims are now based more closely on your real earnings prior to injury – incorporating overtime and shift allowance in the initial 52 weeks of weekly payments.
For the first 13 weeks of a claim, you will receive up to 95 per cent of pre-injury earnings.
In weeks 14–130, your benefits will be made up to 95 per cent of pre-injury average weekly earnings if you return to work for at least 15 hours a week. Otherwise, you will receive up to 80 per cent.
After 130 weeks, if you have capacity to work but are not working at least 15 hours a week and earning at least $155 per week then your benefits will cease. If an emplyee is working at least 15 hours and earning at least $155, or have no capacity to work, your benefits will continue.
For most workers, weekly payments are limited to five years from the date of your claim (or when you reach retirement age, if that is sooner – at which stage you may receive commonwealth benefits).
Benefits cover your medical and related expenses for up to 12 months after you cease to be entitled to weekly payments (or 12 months after you made your claim if you do not receive weekly payments).
If you were claiming prior to these reforms, from 1 January 2013 a ‘transitional amount’ (which is significantly higher than the old statutory rate) will be used as your deemed pre-injury earnings.
Reference:workcover.nsw.gov.au
*The maximum compensation amount from 1/10/2012–31/3/2013 is $1868.50.
Special requirements for continuation of weekly payments after second entitlement period (after week 130) Section 38, 1987 Act –
A worker’s entitlement to weekly payments after the expiry of the second entitlement period ceases unless they are entitled to compensation under s38, of the 1987 Act. A worker has an entitlement to receive weekly compensation after week 130, if:
(a) The worker has applied in writing in approved form to insurer within 52 weeks of end of week 130 for continuation of payments (so week 78 to 130); and
(b) The worker has returned to work for at least 15 hours per week and is earning at least $155p/w; and
(c) The worker is assessed by insurer as being incapable of undertaking work to increase current weekly earnings, and this likely to continue indefinitely.
Lump sums for permanent impairment (and pain and suffering)
No permanent impairment compensation unless greater than 10%
For “claims” made after 19.6.2012 this removes a worker’s entitlement to claim any further lump sum compensation if their condition deteriorates.
Payment of medical and treatment expenses
The worker’s employer is not liable under this section to pay travel expenses related to any treatment or service if the treatment or service is given or provided at a location that necessitates more travel than is reasonably necessary to obtain the treatment or service.
Workcover guidelines may specify things such as qualifications, limiting the amount and conditions for giving treatments - examples billing attending conferences irrespective of time
Provision Of Legal Assistance To Pursue A Claim
a: No legal costs for acting for a worker in relation to review of a work capacity decision
Currently revisions of the Workers Compensation Act prevents a legal practitioner from being paid or recovering any costs incurred in connection with a review. Hence, workers will need to firstly be aware of their rights to lodge a review, the time restrictions placed on making such an application and prepare the application opposing the decision all by themselves.
b: Claiming a Lump sum
c: There are no changes to the conditions for Common Law claims
For a Common Law Claim to be lodged the worker: