NSW STATE WORKERS COMPENSATION
You are entitled to weekly benefits of up to 95% of your pre-injury average weekly earnings (“PIAWE”) for the first 13 weeks of the injury.
Thereafter and up to 130 weeks, if you are able to work more 15 hours per week, you are entitled to up to 80% of your PIAWE, and up to 95% of your PIAWE if you are able to work more than 15 hours per week.
Between 130-260 weeks, you are only entitled to weekly benefits of up to 80% of your PIAWE if you either have no capacity for work, or are working more than 15 hours per week.
Beyond 260 weeks, you are only entitled to weekly benefits of up to 80% of your PIAWE if you are a highest needs worker (greater than 30% permanent impairment) or a high needs worker (20% or higher permanent impairment).
These entitlements cease after you turn 66 years old.
Medical and Treatment Related Expenses:
You are entitled to claim all reasonably necessary medical and treatment related expenses, including some travel to receive medical treatment incurred within the first 24 months of the injury, or 24 months from the date of the last entitlement to weekly benefits.
High needs workers may claim expenses within the first 5 years of the injury, or 5 years from the date of the last entitlement to weekly benefits.
Highest needs workers have a lifelong entitlement to claim for reasonably necessary medical treatment.
You may claim up to $7,500 worth of expenses without the prior approval of the insurer. For expenses beyond this limit, you will need prior written approval from the insurer.
Lump Sum for Permanent Impairment:
If your physical or psychological work-related injury has resulted in permanent impairment, you may be entitled to claim a set lump sum depending on the degree of your permanent impairment from the insurer. You may only make one claim lump sum compensation for permanent impairment. It is therefore a good idea to only make such a claim if you have reached maximum medical improvement, your injury is not likely to further deteriorate, and you have had all necessary treatments.
For physical injuries, you need to have more than 10% (11% or more) whole person impairment to entitle you to claim a lump sum for permanent impairment. For psychological injuries, this threshold is 15% or more whole person impairment.
Unfortunately, you cannot claim for any “pain and suffering” the injury has caused.
If a medical practitioner certifies that you reasonably require domestic assistance as a direct result of your work related injury, you may claim the cost of domestic assistance of up to 6 hours per week for 3 months. These costs can include the loss of income of an unpaid carer.
To be entitled to domestic assistance payments thereafter for unlimited hours and unlimited time period, you will need to be assessed as having more than 15% whole person impairment.
Artificial Aids, Home and Vehicle Modification:
If your work related injury means that you require any artificial aids, home or vehicle modifications, you may claim these reasonable costs for life.
You may claim up to $1,000 for return to work assistance, and up to $8,000 for high needs workers who have received more than 78 weeks of payment for any necessary retraining/re-education costs.
You may also claim compensation for damages to artificial eyes, false teeth, crutches, artificial limbs, other artificial aids or spectacles due to a work related injury.
Death and Funeral Benefits:
Where a work-related injury directly results in the death the worker, the worker’s dependents may claim a specific lump sum and set weekly benefits for each dependent child until the age of 18, or 21 if the child is engaged in studies and not earning an income.
The deceased worker’s estate may also claim up to $15,000 for reasonable funerary related expenses.
Comcare is a workers compensation scheme that applies to certain Commonwealth and government employers, or other employers who opt in to the Scheme. The Scheme is largely similar to the State scheme, although there are differences in the calculations of entitlements, time limits and thresholds.
Generally, there is no time limit for claiming entitlements – so long as you are injured, incapacitated or require medical treatment as a direct result of the work related injury, you are entitled to claim compensation.
Workers whose injuries were substantially caused by their employment, are entitled to claim similar heads of compensation as workers who are covered by the State insurance scheme.
The notable differences in Comcare entitlements are discussed below.
For the first 45 weeks of the injury, you may claim up to 100% of your normal weekly earnings (“NWE”).
Thereafter, you may claim:
- up to 75% of your NWE if no work capacity;
- up to 80% of your NWE if at 25% or less work capacity;
- up to 85% of your NWE if between 26% and 50% work capacity;
- up to 90% of your NWE if between 51% and 75% work capacity; and
- up to 95% of your NWE if between 76% and 99% work capacity.
You may claim for capped amounts for any reasonably necessary medical and treatment related expenses.
If your physical or psychological work-related injury has resulted in permanent impairment, you may be entitled to claim a set lump sum depending on the degree of your permanent impairment from Comcare.
You need to have more than 10% (11% or more) whole person impairment to entitle you to claim a lump sum for permanent impairment. For hearing loss injuries, this threshold is 5% or more whole person impairment. There is no threshold for claiming lump sum compensation for loss of fingers, toes or senses of taste or smell.
You may claim a set amount for non-economic loss such as “pain and suffering” caused by the work related injury. You may make multiple claims for lump sum compensation if you can show that your injury has deteriorated.
Can I sue my employer?
Compensation for work related injuries requires the worker prove the connection between the injury and the employment, and does not require the worker to prove “fault”. Therefore, claims are made against the employer’s insurer, and not the employer itself.
However, workers may bring a claim against the employer where there the injury sustained was a result of negligence on the part of the employer and the worker has sustained an injury that results in permanent impairment of 15% or more.
Is there a time limit to making a claim?
You should lodge a claim within 6 months of the injury, or as soon as you are aware of your entitlement to make a claim.
If you are entitled to claim for damages due to your employer’s negligence, you must lodge a claim with the District Court within 3 years of the date of your injury, or date that you finalise your permanent impairment claim.
What are the legal fees involved in making a workers compensation claim?
We will charge in accordance with our Costs Agreement, so you will always know what you are paying for. We will attempt to recoup your legal fees from Comcare at the resolution of your matter.
In Comcare claims, our fees are in accordance with our “No Win No Fee Policy”.
If an insurer has declined liability for your claim for compensation,
If you have been exposed to a noisy workplace environment for pro-longed periods of time, and have sustained hearing issues such as difficulties hearing in open spaces, difficulty hearing with background noises, listening to audio on louder volume, difficulty hearing higher frequencies, having to shout to communicate, or hearing constant ringing or buzzing noises, you may be entitled to make a claim for lump sum compensation and costs of hearing aids on the last noisy employer.
If you continue to work in noisy workplaces and your hearing deteriorates since your last claim, you may be entitled to make more than one claim for lump sum compensation, and costs to replace your hearing aids.
Workers such as machine operators and factory workers, construction workers, miners, transport workers, farmers, and boilermakers, are those usually subjected to loud workplace environments.
Fire fighters, police officers and paramedics are also able to claim compensation for hearing loss, however these claims are run slightly differently.
How do I make a claim?
You will firstly need to undergo a hearing and relevant test to determine the extent of any hearing impairment. Bay Legal is able to assist you investigating your claim. Please contact us for an obligation free discussion of your matter.
How much will it cost me to make a claim?
If we are engaged to investigate your claim, we will apply to the Workers Compensation Independent Review Office (“WIRO”) for legal fees and disbursements funding to investigate your claim. We are an Accredited Legal Service Provider with WIRO.
Is there a time limit to making a claim?
There is no time limit to making a claim. However, it is always a good idea to speak with medical practitioners and lawyers regarding your hearing issues to ascertain what can be done for you in a timely manner.