More Information on Benefits and the Changes in NSW

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 :

• In how and when they are to provide suitable duties
• The penalties that may be imposed if they don’t comply

• In what services they can now provide to injured workers
• How they get funded
• New Work cover registration requirements

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:

• The worker is assessed as having no current work capacity[1] and likely to continue to have no capacity indefinitely: s38(2)
• The worker is assessed as having a current work capacity[2] [s38(3)] only 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 a “claim” made after 19 June 2012 Act now provides that only a worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive compensation for permanent impairment.  (section 66 of the 1987 Act)
• Workers' s66 permanent impairment dollar entitlements between 11% and 100% whole person impairment and related formulas remain the same.
• S69A, 1987 Act (no compensation for less than 6% hearing loss) has been omitted as has s69B.
• Only one claim for permanent impairment  - S66 (1A) provides that “Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from the injury”.

For “claims” made after 19.6.2012 this removes a worker’s entitlement to claim any further lump sum compensation if their condition deteriorates.

• No pain and suffering  - Section 67 has been repealed, so for “claims” made on or after 19 June 2012 There is no entitlement to pain and suffering compensation. 

Payment of medical and treatment expenses

• The worker’s employer is not liable under this section to pay the cost of any treatment or service (or related travel expenses) If the treatment or service is given or provided without the prior approval of the insurer (not including treatment provided within 48 hours of the injury happening and not including treatment or service that is exempt under the Workcover Guidelines from the requirement for prior  insurer approval), or
• The treatment or service is given or provided by a person who is not appropriately qualified to give or provide the treatment or service, or
• The treatment or service is not given or provided in accordance with any conditions imposed by the Workcover Guidelines on the giving or providing of the treatment or service, or
• The treatment is given or provided by a health practitioner  whose registration as a health practitioner under any relevant law is limited or subject to any condition imposed as a result of a disciplinary process, or who is suspended or Disqualified from practice

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

• Workers can still access lawyer to assist with their application for a lump sum payment.  Only lawyers who are registered and accredited with Workcover can be accessed and subsided.
• Approved lawyers must ascertain whether the workers injuries are likely to be greater than 11% for a claim to be successful and before acting for the worker.
• Provisions for top up payments have been removed - i.e. if an injury deteriorates there will be no further compensation.   This also removes the access to later common law claims if the percentage whole body impairment was to reach 15%.

c:     There are no changes to the conditions for Common Law claims 

For a Common Law Claim to be lodged the worker:

1. Must have a  whole body impairment greater than 15%
2. Must be able to demonstrate negligence by the employer 

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