The Timeliness Of Surgery

One of the disputes workers compensation clients will encounter with insurance companies is whether treatment is reasonably necessary following a workplace injury. The relevant section of the Workers Compensation Act 1987 NSW is section 60. If the dispute is before an Arbitrator in the Workers Compensation Commission they will need to consider the following before deciding on whether treatment is reasonably necessary or not, as noted in Rose v Health Commission (NSW) (1986) 2 NSWCCR 32:

a) The appropriateness of the particular treatment;
b) The availability of alternative treatment, and its potential effectiveness;
c) The cost of the treatment;
d) The actual or potential effectiveness of the treatment; and
e) The acceptance by medical experts of the treatment as being appropriate and likely to be effective.… Read More

Journey claims and Christmas parties

With the festive season in full swing and enthusiastic employees awaiting a party to unwind from their work responsibilities, employers should be aware that liability for workers compensation claims is still applicable. This is regardless of whether the annual Christmas party is held privately or publicly, at a location or premises different to their usual place of business.
In the case of Suzanne Elizabeth McCoy v State Super Financial Services Australia Limited [2018] NSWWCC 77 which was decided in 2018 the applicant worker was planning to attend her work Christmas party at a local hotel in the same town as her employment.… Read More

Section 38A of the Workers Compensation Act 1987 – a bonus for workers with Highest Needs

Under the NSW Workers Compensation system a worker is assessed, once they have reached maximum medical improvement, based on a percentage of whole person impairment. This percentage then equates to varying levels of compensation. If a worker is assessed at greater than 30% whole person impairment the worker is then considered a worker with Highest Needs.

Section 38A of the Workers Compensation Act 1987 then comes into play as it provides a special provision for workers with Highest Needs. Provided the worker has some level of incapacity, the worker has access to a minimum weekly payment of compensation. Under section 38A the amount is $788.32… Read More

What happens if you die as a result of work?

In NSW each year there are approximately 100 deaths that occur at work or as a result of work. The Workers Compensation Act 1987 NSW provides specific provisions for compensation to families who have a loved one who dies as a result of work. Section 25 of the 1987 Act entitles dependents to a lump sum death benefit amount which is currently $798,100 (as at 26/03/19). Dependent children are also entitled to a weekly benefit of the current rate of $142.90 per week (as at 26/03/19) under the age of 16 years, or if they are student up to the age of 21 years.… Read More

Workers compensation – work capacity decisions – Mark Grady

MKG-newFurther to Libby Campbell’s article last week in regards to hours of work and the calculation of pre-injury average weekly earnings (PIAWE), for work capacity decisions made on or after 1 January 2019, there is a new regime.

Work capacity decisions include decisions by the workers compensation insurer in respect to a worker’s capacity to work and their PIAWE.

Decisions in respect to PIAWE, which are generally mathematical calculations, require review of wages material in the 12 months prior to the worker’s injury and will be in the large part resolved by a review of the insurer, or failing that by an arbitrator of the Workers Compensation Commission.… Read More

The extra hours do count – Libby Campbell

The extra hours do count – Libby Campbell

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.… Read More

The law is tough when it comes to being an “existing recipient” – Libby Campbell

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.… Read More

Journey claims and Magpies – Mark Grady

MKG-newOn 19 June 2012 the Workers Compensation Act 1987 was substantially amended, one of those amendments was to greatly limit workers and their ability to claim benefits under the Workers Compensation Act for injuries sustained whilst on a journey to and from work.

In the case of Smith v Woolworths Limited (2017) NSW WCC 290 Ms Smith was employed by Woolworths and on the day of injury she drove her vehicle within the staff carpark.  After parking her vehicle in the staff allocated carpark, she then walked along a walkway and just prior to going through the automatic doors, Ms Smith was attacked by a bird and she suffered a serious right eye injury.… Read More

Are heart attacks/strokes covered under workers compensation? – Mark Grady

MKG-newOn 19 June 2012 section 9B of the Workers Compensation Act 1987 (section 9B) was introduced that provides that no compensation will be payable for people suffering from a stroke or a heart attack, unless the nature of employment gave rise to a significantly greater risk of the worker suffering the injury.

For heart attacks prior to 19 June 2012, the test was whether employment was a substantial contributing factor to the injury. Section 9B seeks to make the test more onerous on the worker.

In the normal course of events, the question to be answered is whether the work that the deceased was doing significantly heightened the risk of injury.… Read More

Are your workers compensation payments correct? – Libby Campbell

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.
Read More