TGB personal injury lawyer Daniel Clarke answers some of the more common questions that arise in relation to workers’ compensation claims in Western Australia.
The ripple effect of getting injured at work can be enormous. Stress and anxiety are common among injured workers. While you try to focus on your rehabilitation, it is difficult not to have concerns about your ongoing financial security, future work options and the outcome of your workers’ compensation claim.
In this blog I have answered the five most common questions I am asked when I first meet injured workers to discuss their claim.
- How do I lodge a claim?
- If my claim is accepted what are my entitlements?
- If I lodge a claim can I lose my job?
- Do I have to disclose a previous claim to a new employer?
- Can I sue my employer?
HOW DO I LODGE A CLAIM?
If you are injured at work you must notify your employer orally or in writing as soon as reasonably practicable after sustaining your injury. You should see a doctor and ask for a First Certificate of Capacity. You should also complete a WorkCover WA Workers’ Compensation Claim Form, then provide your employer with both documents. Make sure you keep copies for yourself.
Once your employer receives your Claim Form, it must provide it to its insurer within five working days.
The insurer will contact you within 14 days and inform you of whether your claim has been accepted, disputed or pended.
For your claim to be accepted, essentially you need to have suffered an injury during the course of your employment (ie while you were at work) or as a result of your employment (for example, if you sustain a back injury at work as a result of the repetitive heavy lifting you are required to perform). An injury includes a physical or mental injury, a disease, disfigurement, aggravation or recurrence of a pre-existing injury or disease.
IF MY CLAIM IS ACCEPTED WHAT ARE MY ENTITLEMENTS?
In Western Australia, there are four categories of entitlements under the Workers’ Compensation and Injury Management Act 1981 (the Act).
- Weekly Payments
If you are incapacitated for work as a result of a work injury either partially or totally, you could have an entitlement to weekly workers’ compensation payments up to a prescribed amount, currently $224,921.00 gross and “capped” at a weekly rate of $2,647.30 gross.
Your weekly payments are calculated based on your average weekly earnings prior to your injury. There are two methods of calculating your weekly payments depending on whether you work under an industrial award or not.
Your weekly payments will stop once you have returned to work. There are also other circumstances under which your weekly payments will stop, such as providing your consent; you have been certified fit to return to work; settlement; electing to pursue a common law claim or reaching the prescribed amount.
- Medical and other Expenses
You are entitled to payments of any necessary and reasonable medical and like expenses incurred as a result of your work related injury. Medical expenses are limited to a prescribed amount currently $67,476.00. In certain circumstances further amounts may be payable. You are also entitled to travel, board and lodging expenses.
- Rehabilitation Expenses
You are also entitled to reasonable rehabilitation expenses and which are limited to a prescribed amount currently, $15,744.00.
- Permanent Impairment
If your injury results in permanent impairment you may be entitled to a lump sum payment under Schedule 2 of the Act.
The payment of a Schedule 2 lump sum is made from remaining funds, if any, in the weekly payments prescribed amount.
To know whether you have a permanent impairment, an assessment must be performed by an Approved Medical Specialist (AMS). An AMS is a medical practitioner registered by WorkCover WA and trained to evaluate impairment using certain specific guides. The assessments can be complex. It is important to ensure the assessment has been performed correctly and the AMS has been provided with the correct information. You should seek independent legal advice before undergoing an assessment.
If you intend to pursue a common law claim for negligence against your employer, then it will be necessary for you to be assessed for a whole person impairment (WPI) by an AMS. Determining if you have prospects of success and the right to pursue a common law claim is complex. You should seek independent legal advice.
In some instances the insurer may offer a lump sum payment to conclude your future entitlements to weekly payments and/or medical payments and other expenses and permanent impairment. This is known as “a redemption”. Serious consideration must be given to a number of issues before you accept a redemption. Your lawyer will be able to provide advice if you have been offered a redemption.
IF I LODGE A CLAIM CAN I LOSE MY JOB?
Your employer is usually required to return you to your original position or a similar position if you have a partial or total capacity for work. Your employer is usually required to provide you with 28 days notice of its intention to dismiss you while incapacitated.
If your claim has been accepted and you remain in receipt of entitlements when you are dismissed, you will usually be entitled to receive ongoing entitlements.
If a dispute arises between you and your employer you should seek independent legal advice as soon as possible.
DO I HAVE TO DISCLOSE A PREVIOUS CLAIM TO A NEW EMPLOYER?
Strictly speaking, unless you are asked, you do not have to tell a potential employer that you have had a previous work injury or other injuries. However, if you are referred for medical assessment by your potential employer and you are asked by the assessing doctor about any previous injuries then you should disclose those injuries.
If you have an injury that may affect your ability to perform particular duties then you should disclose that to a potential employer.
CAN I SUE MY EMPLOYER?
In Western Australia there are limited circumstances in which you can sue your employer. You will be required to prove your employer’s negligent conduct caused your injury. You will have to achieve a 15% or higher WPI and must take certain specific steps to register your right to elect to sue your employer at WorkCover WA. Strict time limits apply in these circumstances and if they are not complied with you may lose your right to sue. The insurer will generally provide you with a Form 36 specifying the date by which you have to register your right to elect at WorkCover WA.
Suing your employer is highly complex and may impact your worker’s compensation entitlements. Given the complexity of such claims, it is wise to speak to your lawyer as soon as possible.
Tindall Gask Bentley Lawyers are workers’ compensation specialists and offer a free first interview for workers’ compensation claims. If you have made a claim call our team in West Perth on (08) 9211 5800 for a free, initial interview to assess your claim, or leave your details here and we’ll be in touch soon.
If you have not made a claim, disregard this publication.
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