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. She was tired from the day’s work and the year that had been. She lived approximately 40 minutes from the town and was intending to consume alcohol at the function so had booked a motel for the night with her husband, which would also avoid a long trip home after the party. She finished work at 5pm, her husband then picked her up from work and went to the motel. They then got ready for the party at the motel and then left the motel at 5:45pm to ensure they arrived on time for the party at 6pm. They were hurrying to get to the party. It was the worker’s perception that she was required to attend the party on time. While making their way to the party the worker tripped on a raised paver and injured her right ankle. The right ankle injury led to significant complications including symptoms suggestive of Complex Regional Pain Syndrome.
Liability was disputed by the workers compensation insurer. The insurer did not dispute the injury occurred but they did dispute whether the injury arose in the course of her employment, whether the injury arose out of that employment, whether the applicant’s employment was a substantial contributing factor, whether the applicant was making a journey, and whether there was a real and substantial connection between her employment and the injury.
The Arbitrator found for the worker in respect to her making a journey claim and that there was a real and substantial connection between the worker’s employment and the fall causing injury, namely she was tired from the day and year, as well as her perception to attend the work party on time which lead to her hurrying.
If you have a query whether a journey claim is a compensable workers compensation claim please contact Everingham Solomons because Helping You is Our Business.
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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 indexed, and is currently $840 per week.
Previously, if a worker with Highest Needs had some capacity to work, was earning income less than the minimum weekly payment, and their pre injury average weekly earnings was less than the minimum weekly payment, it was presumed that the workers compensation insurer would top up the worker’s wage until it reached the figure stipulated under s38A. However, the case of Vostek Industries Pty Ltd v White [2018] NSWWCCPD 47 has found differently. Mr White who was the injured worker was assessed at 32% whole person impairment. He returned to work and was earning $984.50. He then made a claim for the amount under s38A, in addition to his earnings from employment.
Mr White was successful in his claim and it is now confirmed, as a result of this case, that the injured worker is entitled to earnings plus the amount under s38A provided they are a worker with Highest Needs, and have some level of incapacity. If you think you are or know someone who fits this criteria and has not been receiving the additional amount under s38A please contact our office because Helping You is Our Business.
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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.
Section 26 provides for payment of reasonable funeral expenses not exceeding $15,000.
Biological children and step-children are considered the same for the purposes of the compensation. Student means a person receiving full-time education at school, college or university.
In these particular matters the first step is for liability to be determined. If the insurance company accepts liability, that is, there is no dispute that the deceased died as a result of work, then compensation will be paid to the dependents of the deceased. This compensation includes the funeral expenses, weekly payments to dependent children if they under 16 years, or are under 21 years of age and are full-time students, and the lump sum death benefit.
The second step in these matters relates only to the lump sum death benefit. Each dependent person will have the opportunity to put forward their reasoning in relation to what amount of the lump sum death benefit is apportioned to them. Significant issues to cover include:
The dependents level of past dependency and expected future dependency, for example were they living with the deceased.
Does the dependent have any special needs such as illnesses or conditions that warrant a greater level of apportionment to cover the cost of care or treatment that the deceased worker would have contributed to.
Does the dependent have any significant lifestyle factors that require consideration.
All of these issues and factors will help determine the apportionment to each dependent. If you believe you are a dependent of a deceased worker please contact out office to obtain advice in relation to the entitlements that are available to you because Helping You is Our Business.
Further 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.
All other decisions that would include decisions about a workers ability to work are more complex and require evidence to be gathered from medical professionals. The insurer will be asked to review their decision however, if the insurer is unswayed, then proceedings would be commenced in the Workers Compensation Commission and a decision made by an arbitrator.
The above pathways are new and only available for work capacity decisions made on or after 1 January 2019.
If you require assistance in respect to the above, please contact the writer at 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.
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 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.
The question was whether Ms Smith was still on a journey and if not, whether her injury arose during the course of her employment.
Arbitrator Harris decided that as Ms Smith had finished her journey as ‘She crossed the boundary of the land on which her place of employment was situated‘. It should be noted that the staff carpark and the complex are all under the one deposited plan.
It was held that Ms Smith was no longer on a journey, with the next question being whether the injury arose out of the course of her employment. It was held that Ms Smith was attacked by a bird in circumstances where the employment bought her to the very point where the injury occurred and hence on that basis the injury arose out of the course of her employment.
This case is a timely reminder as we enter the season of swooping magpies and the risk these native birds may pose to workers entering and leaving the workplace, as well as the entitlements available to workers if they are injured as a result of a swoop.
If we can be of any assistance please contact us at Everingham Solomons because Helping You is Our Business.
On 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.
However in the matter of De Silva v Secretary, Department of Finance, Services & Innovation [2015] NSWWCC 279 (De Silva) it was held that if a person was put in a position by his employment and that gave rise to a significantly greater risk of injury then it was compensable.
In De Silva the deceased was in a motel room alone in Ballina away from his wife and family. There was no dispute that the only reason he was in the motel room in Ballina, was because of his employment. Mr De Silva had a heart attack and the medical evidence was that if he was accompanied, which he would have been in his own bed, then it was more likely than not that an ambulance would have been called and he would have survived the heart attack.
Thus it was decided that as Mr De Silva was alone at the time, as a result of his employment, this gave rise to a significantly greater risk of injury.
If you have issues with workers compensation please contact us at Everingham Solomons because Helping You is Our Business.
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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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.
