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.
In NSW, if a person was on their way to or from work (known as ‘journey claims‘) and they suffered an injury, they have always been covered for workers compensation. That was up to 2012. In 2012 the Workers Compensation Act 1987 was amended and one of the changes that came in related to journey claims.
Section 10(3A) of the Workers Compensation Act 1987 provides that for journey claims there needs to be ‘a real and substantialconnection between the employment and the accident‘.
The question therefore is ‘what is a real and substantial connection?‘
The two leading cases are:
Singh & Singh t/as Krambach Service Station v Wickenden  NSWWCCPD 13 – Ms Wickenden was working at the Krambach Service Station and travelled by way of motor bike in the daytime to and from work. On the day of the accident Ms Wickenden was asked to work longer hours for a period which meant that she finished work in the dark and whilst she was driving home a car travelling in the opposite direction, swerved to miss some cattle and collected Ms Wickenden. The question was whether there was a real and substantial connection between her employment and the accident. It was held that as her employer required her to work later than normal and therefore she rode home in the darkness and the darkness was one of the causes of the accident, there was a real and of substantial connection;
Namoi Cotton Co-Operative Ltd v Easterman (as Administrator of Estate of Easterman)  NSWWCCPD 29. In that case the deceased worker was driving a vehicle home when she was killed. It was established that she fell asleep at the wheel. The applicant had worked 60 hours in the proceeding five day shift. As fatigue was the cause of the accident, and her employment was the cause of the fatigue, there was a ‘real and substantial connection between the applicant’s employment and the accident‘.
These decisions illustrate that employment does not need to be the sole cause of the accident. ‘Real and substantial‘ connection is a wider concept and captures scenarios where there is a more ephemeral connection between employment and the injury.
If you should have any queries in respect to journey claims and other workers compensation questions please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.