The payment of weekly compensation for workers compensation matters are calculated based on the workers pre-injury average weekly earnings (PIAWE) prior to the injury date.
Generally the insurer will review the amount the worker has earned in the 52 weeks prior to the injury. The total amount is then averaged over the 52 week period and the weekly amount is known as the PIAWE figure.
For the first 13 weeks of the claim the worker will receive 95% of the PIAWE amount and from 14 weeks onwards the worker will then receive 80% of the PIAWE amount if they are totally incapacitated to work.
If a worker was injured before 26 October 2018 and they had been paid over time or shift allowance payments in the 52 weeks leading up to the injury date, then these amounts were only included in the worker’s PIAWE, and subsequent weekly payments, for the first 52 weeks of weekly compensation payments following the injury.
However there has been some legislative changes and now for workers injured on or after 26 October 2018, any overtime and shift allowance payments are permitted to be included for the purpose of calculation of weekly payments at any time. Meaning the ’52 week step down’ as it was known no longer applies to workers with an injury on or after 26 October 2018.
This is a significant benefit to workers who relied on the additional income from overtime or shift allowance payments.
If you are uncertain whether your PIAWE amount has been calculated correctly please contact us at Everingham Solomons, because Helping You is Our Business.
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Many injured workers are faced with having their weekly payments stopped due to a change in workers compensation laws that was introduced in 2012, limiting the amount of weekly payments a worker could receive to 260 weeks (5 years) under section 39 of the Workers Compensation Act 1987. The section does not apply to an injured worker if their injury has been assessed as greater than 20% whole person impairment.
As part of the legislative changes there was a saving grace piece introduced to cover worker’s injured prior to the changes being implemented, so that the changes did not apply retrospectively. This meant that “existing recipient’s”, workers who were injured and made a claim prior to 1 October 2012 were firstly, permitted to have the number of weeks restart on 1 October 2012. Secondly, when their 260 week period was finished, and if they were not at maximum medical improvement, for example they had recently undergone surgery, then they were able to have an assessment made by an Approved Medical Specialist to state they had not reached maximum medical improvement. This assessment then allowed their weekly payments to continue until they had reached maximum medical improvement and could be assessed to see if they reached the required threshold of greater than 20% whole person impairment.
Where the law then becomes particularly strict is to qualify as an existing recipient the case of Zeljko Komljenovic v Facility Management Solutions Pty Ltd [2013] NSWWCC 69 states that you have to be receiving weekly payments at the time of 1 October 2012. For some workers they may have been injured and made a claim prior to 1 October 2012, been back at work on 1 October 2012, then required surgery after this date, therefore being unable to work. If multiple surgeries were required and during their recovery period they have used up their 260 weeks’ worth of weekly payments or had only returned to work part-time due to the injury, then they are not entitled to weekly payments after 260 weeks as they were not receiving weeklies at the exact date of 1 October 2012. These workers are further disadvantaged if further treatment is still required as they are not suitable to be assessed for whole person impairment to know if they have reached the greater than 20% whole person impairment threshold. If they do proceed to assessment of whole person impairment prematurely they may be extinguishing their valuable rights to further compensation in the future.
If you have, or know someone who has, received notice of their weekly payments ceasing due to section 39 then please contact our office to discuss your options because Helping You is Our Business.
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On 16 August 2018 the Federal Court handed down a significant judgment in the matter of Workpac Pty Ltd v Skene relating to the classification of casual employment. The case involved a dump truck driver, Mr Skene who applied for a “fly in, fly out” position with Workpac at a coal mine operated by Rio Tinto in Central Queensland. Mr Skene was informed the work would be 12 hours per shift, 7 days on, and 7 days off, on a continuous roster arrangement. Mr Skene was successful in obtaining the position and was provided a “Notice of Offer of Casual Employment”, his employment was also governed by an industrial agreement.
Mr Skene commenced work on 20 July 2010 and was provided a roster ending in December 2010. In the first two weeks of work he was provided a different room to stay in each time, he was then assigned a permanent single room and storage in the room for his belongings. In January 2011 and 2012 Mr Skene was provided with a roster for the entire following year in advance.
On 23 April 2012 Mr Skene’s employment was terminated.
The issue before the court was firstly the nature of Mr Skene’s employment and the entitlements that might be available to him based on his employment classification, in particular, Mr Skene argued he was entitled to annual leave and consequential entitlements.
The terms of the offer of employment as signed by Mr Skene were consistent with the employment being an ongoing position in that the hours of work were fixed and payment was regular. This was also reflected in the rosters provided months in advance, as well as the permanent accommodation provided to Mr Skene. He was not able to pick and choose the days he worked, particularly once he was flown to the location. Additionally, the hours did not fluctuate, it was always 12 hours per shift.
Despite Mr Skene being aware he signed the Notice of Offer of Casual Employment, the Court held the offer of employment was not enough to determine a casual relationship existed, but rather the Court was required to look at the real substance of the employment relationship. It was a question of fact whether he was a casual employee or not.
Mr Skene was found not to be a casual employee and therefore was permitted to further entitlements not previously paid to him.
If you have questions about casual employment arrangements or any other employment law matter please contact our office, because Helping You is Our Business.
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Injured workers receiving weekly entitlements are exposed, throughout the life of their claim, to a potential work capacity decision made by the insurance company at any time. Work capacity decisions relate to whether you can work, the type of work you can do, and for how long. The scope of a work capacity decision is governed by section 43 of the Workers Compensation Act 1987.
Examples of typical disputes include:
You disagree with the insurer on your current ability to return to work;
You disagree with the insurer as to what is suitable employment for you during your recovery period;
You disagree with the monetary amount you are able to earn in suitable employment;
You disagree with the amount that has been assessed by the insurer for your preinjury average weekly earnings or current weekly earnings;
You disagree with the insurer that you are able to engage in employment without causing further substantial risk of injury based on your injury.
The Workers Compensation Commission does not hold jurisdiction in relation to determining these matters, instead a different process applies.
A request for an internal review of the decision to the insurance company is required as the first step. The insurer then has 30 days to provide their review decision. If you still disagree with the insurer’s decision you can then apply for a merit review by the State Insurance Regulatory Authority (SIRA). As of 1 August 2016 you are now able to have a solicitor prepare this application. SIRA will conduct a merit review and then send the details of the findings and recommendations, with their reasons, to you and the insurer, usually within 30 days of the application being made. SIRA’s review is binding on the insurer.
If you disagree with the decision from SIRA then you can apply for a procedural review by the Workers Compensation Independent Review Office (WIRO). If you believe your workers compensation payments are not correct, please contact our office to meet with a solicitor to discuss your payments, because Helping You is Our Business.
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Under NSW workers compensation law medical expenses are stopped after certain periods depending on the severity of the injury. For all accepted injuries there is a minimum of two years from the date of the injury or the date of the last weekly payment that reasonably necessary medical expenses will be covered by the workers compensation insurer. If the worker is assessed between 11% and 20% whole person impairment the worker’s medical expenses are then covered for five years from the date of injury or from the date of the last weekly payment. If the worker is assessed at greater than 20% whole person impairment the worker’s medical expenses are covered for life.
There is an exception to this rule if the worker is outside of the above time limitations, under section 59A(6) of the Workers Compensation Act 1987 (NSW). This exception only applies for claiming compensation in respect to the following kinds of medical or related treatment:
The provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles (including hearing aids and hearing aid batteries);
The modification of a worker’s home or vehicle;
And, secondary surgery.
This exception is important as it provides workers with assurance that future medical expenses will be covered by the insurer, particularly for items or aids that will be used indefinitely. Additionally, many people choose to delay having surgery, such as knee replacements, under medical opinion or otherwise, and require protection that the insurer will cover the cost of the surgery when the time comes to proceed with the surgery.
In a recent case of Pacific National Pty Limited v Baldacchino & SIRA it determined that a total knee replacement was an ‘artificial aid’ for the purposes of S59A (6)(a) of the Act therefore ensuring that protection is there for workers. However the insurer has commenced proceedings to appeal against the decision and we await whether knee replacements will continue to be covered as an ‘artificial aid’ under the protection of s59A (6)(a) of the Act.
If you have a query in relation to medical expenses under the workers compensation scheme, even though the insurer may deny the claim, please contact the experienced team at Everingham Solomons because Helping You is Our Business.
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The 21st century has seen an increase in the use of flexible working arrangements and alternate employment settings, which can involve the home. However are employees covered by workers compensation if they are working from home and there are no other employees or witnesses to vouch for their activities and potential injuries, and how far does it extend?
A recent decision made by Senior Arbitrator McDonald in the Workers Compensation Commission on 18 January of this year touched on this issue. The case involved a couple who ran a financial advice company from their home. In June 2010 the female partner died at home as the result of injuries inflicted by her partner, who was not found guilty of murder due to mental illness. The deceased was killed on her bed and wearing pyjamas. The deceased had two sons and so a workers compensation death benefit claim was lodged on behalf of the sons.
The issues were whether her injuries were inflicted during the course of her employment and if the injury related to her employment. The time of death was not known therefore the Arbitrator was unable to conclude that the injuries were suffered during the course of her employment. The Arbitrator determined her employment was not related to the injury and instead the delusions experienced by her partner caused her injury and led to her death. No compensation was awarded to her two sons. The decision is subject to appeal, however the case highlights some of the important factual issues the Arbitrator will look to in deciding whether employment is relevant to the injury sustained while at home.
We have two WIRO (Workers Compensation Independent Review Office) approved solicitors which means if you have a viable workers compensation claim it will not cost you anything to dispute the decision of the insurance company. If you have suffered an injury while working, whether at home or your employer’s premises, contact our office for advice on your entitlements because Helping You is Our Business.
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Under section 66 of the Workers Compensation Act 1987 workers are able to claim for permanent impairment for injuries which are assessed at greater than 10% whole person impairment (WPI) for physical injuries, or 15%WPI or more for psychological injuries. If the date of injury was to occur today the maximum payout, or 100%WPI for permanent impairment would be $598,560.
If death results from an injury, the worker’s dependents, such as a spouse or child, are able to claim a lump sum death benefit claim under section 25 of the Workers Compensation Act 1987. If death was to occur today the current pay out figure is $781,900.
Since the workers compensation changes in 2012 no one has tried to claim permanent impairment as well as a death benefits claim until a recent case of Hunter Quarries Pty Limited v Alexandra Mexon as Administrator for the Estate of Ryan Messenger [2017].
In this case, Mr Messenger, a machine operator, died at his workplace in the Hunter Valley, from crush injuries to his chest, which occurred after the 40 tonne excavator he was operating, tipped over and crushed the cabin in which he was working. Mr Messenger died 9 minutes after the accident occurred. Mr Messenger was married.
Mr Messenger’s estate made a claim for death benefits and funeral expenses which was accepted by the insurer. Mr Messenger’s estate later made a claim under s66 of the Act for whole person impairment. The insurer did not accept this claim.
Proceedings were commenced in the Workers Compensation Commission and the claim was referred for assessment of Mr Messenger’s degree of permanent impairment. In April 2016, initially Mr Messenger’s permanent impairment was assessed at 100%, the assessor making note his death was inevitable within a short timeframe. Then in August 2016 the assessor reconsidered the assessment and the final assessment was 0%. The 0% Medical Assessment Certificate was appealed against and the Appeal Panel found Mr Messenger’s permanent impairment was in fact 100%. Their reasoning was that Mr Messenger suffered destruction of his respiratory system and that was a permanent impairment, it was not a temporary injury that could improve with or without medical treatment. The length of time until his death was irrelevant, also irrelevant was that the injury caused his death.
Justice Schmidt of the Supreme Court agreed with the argument that the injury was a permanent injury despite death occurring shortly afterward. It was also confirmed this second claim for compensation was permitted. The Act does not state if you receive permanent impairment compensation you cannot claim for death benefits compensation and vice versa.
This case is currently before the court on appeal, but if it is confirmed to be law then it will provide for a number of people to claim further compensation. If you think you have a similar scenario to the above then please make an appointment to speak with us because Helping You is Our Business.
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In 2012 there were some big changes made to workers compensation laws, the impact of which are now being realised. Approximately 6,300 workers in NSW are likely to be impacted by these changes in accordance with section 39 of the Workers Compensation Act 1987. This section states that weekly payments of compensation will cease after an aggregate period of 260 weeks (5 years) has been paid or is payable to the worker in respect of the workplace injury. The section does not apply to an injured worker if their injury has been assessed as greater than 20% whole person impairment.
Approximately 1900 injured workers will have already been cut off from their weekly payments from 26 September 2017 to the end of 2017. A further 1800 injured workers will lose their weekly payment entitlement on 26 December 2017, with a further 3000 workers due to lose their weekly payment entitlement by June 2018.
Injured workers affected by section 39 should have received a letter from the insurer notifying them of the date their weekly payment will cease, as well as evidence of their whole person impairment assessment. If you are an injured worker and have received this letter, it is important you speak to a WIRO approved lawyer because there is free legal advice available and you may be able to overturn the decision of the insurer to cease your weekly payments. An example of this may be that you require further surgery, therefore you have not reached maximum medical improvement, and you are not ready to be assessed for whole person impairment. At Everingham Solomons we have two WIRO approved lawyers, so if you have received the letter from the insurer stating your weekly payments will cease by a certain date, then please contact our office to speak with one of us because Helping You is Our Business.
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If you have been injured at work you may be eligible to claim for four types of compensation under the Workers Compensation Act 1987 (NSW). Firstly, if partial or total incapacity for work results from a work injury your employer is required to pay you a weekly payment during the incapacity. Secondly, your employer is liable to pay reasonably necessary medical, hospital and rehabilitation expenses including associated travel expenses to attend the treatment. Thirdly, your employer is liable to pay permanent impairment compensation for an injury that results in a degree of whole person impairment greater than 10% for physical injuries, and greater or equal to 15% for psychological injuries. Fourthly property damage expenses, up to a specified amount. Death benefits and funeral expenses may also be payable if a worker dies as a result of a workplace injury.
An example of all entitlements in action is if you were working as a nurse, you wore glasses and during a shift in the Emergency Department you had a patient who turned violent striking you across your face, your glasses broke with a part of your glasses rupturing your eye.
First entitlement – you need time off work as you are unable to see in one eye and you require treatment. Once certified by your Doctor as having an incapacity you are then eligible for weekly payments during your incapacity.
Second entitlement – you require an operation to fix your eye, and subsequent eye drops. If these are considered reasonably necessary, you are eligible to have these expenses paid for by your employer.
Third entitlement – you have permanent damage to your eye and have reduced vision as a result of the injury. If you are assessed as over the required threshold, you are potentially eligible for a permanent impairment payment.
Fourth entitlement – you need new glasses. You are eligible to claim for a replacement pair up to a specified value.
Ideally no problems will arise in receiving these benefits, but if they do you can contact a WIRO approved solicitor and they will be able to assist you to try and overturn the decision at no cost to you. At Everingham Solomons we have two approved WIRO solicitors so please make an appointment to speak with one of us if you believe you have an entitlement that has not been paid to you, because Helping You is Our Business.
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Sometimes getting back to work after a workplace injury is not a seamless transition, particularly if you can’t perform your previous role. If after an injury your doctor has certified you capable of doing some work or even your pre-injury work hours, but has placed restrictions on what type of work you can do, this can become tricky to navigate what your role at work will be with your employer. Some examples of restrictions your doctor may have provided could be a restriction in the amount of weight you are able to lift, the number of hours you are either able to sit or stand for, or a restriction on where in the workplace you are able to work.
If on your return to work your employer tells you they have no suitable duties for you or that they have changed workers compensation insurers and the new insurer will not cover you, this can be refuted. Under section 49 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) your employer must provide suitable work at your request. The employment provided needs to be suitable and so far as reasonably practicable the same as, or equivalent to, the employment you held at the time of the injury. As for the workers compensation insurer not covering you, your employer is correct in saying the new insurer will not cover you but the workers compensation insurer at the time of the injury should cover you, regardless if they are no longer your employer’s current insurer.
There are some circumstances where employment does not have to be provided, for example if providing employment is not reasonably practicable.
If you are currently facing this problem and are having difficulty with your employer providing suitable duties then please contact Everingham Solomons because Helping You is Our Business.
The payment of weekly compensation for workers compensation matters are calculated based on the workers pre-injury average weekly earnings (PIAWE) prior to the injury date.