TGB partner Tim White has successfully managed permanent impairment claims for injured Commonwealth employees right across the country. Here he answers some of his clients' frequently asked questions and raises things they need to be aware of.
How do I know if an offer that has been made for my permanent impairment claim is fair and reasonable?
Too often I see Commonwealth employees considering accepting an offer of compensation in regards to their permanent impairment claim, in circumstances where it is obviously low. Commonwealth employees, that have a work injury, are entitled to a permanent impairment payment under the Safety Rehabilitation and Compensation Act (SRCA). Such payments are made in relation to a variety of conditions, including both physical and psychological conditions. This payment is typically only made once in relation to a specific injury so it is vital that the amount received is accurate and appropriate in view of the injury sustained.
What is a permanent impairment claim?
If you have a injury accepted under the SRCA, you may be entitled to a permanent impairment claim. The injury must be permanent, that is stable and likely to continue into the foreseeable future. Usually that means that it is some 12 months or so post the injury or any surgery that you may have undergone on the injury. There is no set period in relation to when a permanent impairment claim can be made, but it is usually that sort of timeframe that must pass, before an injury will be considered stable and permanent.
Is there a threshold for receiving such a payment?
Yes in order to receive a permanent impairment payment you must have an injury that equates to an impairment of at least 10% or more.
Depending on your injury the assessment is done under the relevant guides, that relate to your specific condition. There are a variety of different tables that apply depending on the nature of the injury and when your injury occurred. Here is a link to one version of the relevant guide, which is the current guide, applicable to claims accepted under the SRCA.
If you have an impairment of more than 10%, then the amount of compensation payable increases. So the higher your percentage of permanent impairment the more compensation that is payable. For a injury that has a 10% permanent impairment, the amount payable is approximately $30,000.00.
Does my claim finish if I receive this permanent impairment payment?
No your claim is not ceased just because you receive this payment. This payment is made in addition to other entitlements that you have under the SRCA, such as weekly payments and medical expenses. So despite receiving this payment your claim continues, as does your employment. You are not required to resign or leave your employment just because you receive this payment.
Is a permanent impairment payable for a psychological injury?
Yes such a payment most certainly is for an employee that has an accepted psychological injury. So for conditions such as PTSD, depression, anxiety, and other psychological conditions, if you exceed the 10% impairment, you are entitled to a permanent impairment payment. The threshold for such a payment in relation to a psychological condition is not actually that high. Again your condition has to be assessed in comparison with the relevant table in the guide, which is Table 5.1 (attached link to Table 5.1).
Is this payment taxed?
The permanent impairment payment is not taxed. It is one of the few payments that you receive as a result of your employment but is not taxed.
Can I have a second permanent impairment claim?
In relation to each specific injury you are usually entitled to only one permanent impairment claim. So it is important that when you are proceeding with this type of claim that you seek legal advice to ensure that the amount payable is appropriate. It is very difficult to pursue and receive a second permanent impairment payment in relation to the same specific injury. The reason for that is that in order to receive a further payment you need another increase in the level of permanent impairment of 10%, over and above the initial impairment.
In short, it is safer to approach these claims on the basis that you are only entitled to one payment for each injury.
If you have multiple work injuries that are accepted, you may be entitled to more than one permanent impairment payment. So if you have injuries accepted for example to your neck, lower back, and right knee, if you have a 10% permanent impairment for each of those three injuries, you would be entitled to three separate permanent impairment payments. So if there is an amount payable above approximately $30,000.00 for each 10% permanent impairment, if you have three injuries, the amount payable could exceed $90,000.00, in this example.
A permanent impairment payment is complex and involves a number of important consideration. It is usually only paid once as well. Frequently doctors that are asked to assess these claims, by insurers, understate the extent of a worker’s injury and the extent of the impairment. You are entitled to challenge the determination by the insurer in relation to such a claim. However, to do so you will need to get medical evidence and establish that your level of impairment is greater than what the insurer has indicated. I frequently assist Commonwealth employees with these type of claims and disputes.