Personal Injury Lawyers, Sydney and NSW

What is a work capacity assessment?

It is an assessment conducted by the insurer to determine if the injured worker has the capacity to return to their pre-injury employment or some other suitable employment.

What is fair notice?

Fair notice is the notice given by the insurer to an injured worker that they are going to be making a work capacity decision that may result in the reduction or cessation of weekly compensation.

What is suitable employment?

It is employment which an injured worker is currently suited to perform taking into account the workers incapacity, age, education, skills and work experience. It does not take into account the availability of the work, the nature of the worker’s pre-injury employment or the worker’s place of residence.

When can the insurer make a work capacity assessment?

The insurer can make a work capacity assessment at any time but must do so within weeks 78 to 130 of weekly compensation and within 2 years of the last assessment.
Workers with the highest needs are not to be assessed unless requested by the injured worker and the insurer feels that it is appropriate.

What information will the insurer consider when making a work capacity assessment?

The insurer will consider all relevant information held on file and any additional documentation provided by the worker. The insurer may also require the worker to be assessed by a medical specialist or healthcare provider.

What is a work capacity decision?

Any decision made by the insurer that may affect a workers entitlement to weekly compensation.

A work capacity decision can include a decision about

• the workers work capacity
• suitable employment
• the workers earning capacity
• the workers pre-injury average weekly earnings
• a workers inability to return to work due to a substantial risk of further injury due to the nature of their injury
• any other decision that affects a workers entitlement to weekly compensation including a decision to suspend, discontinue or reduce weekly compensation.

A work capacity decision does not include a decision on liability.

What notice period is the insurer required to give if payments of weekly compensation will be reduced or discontinued as a result of a work capacity decision?

If the worker has received weekly compensation for at least 12 continuous weeks the insurer must provide 3 months notice prior to the reduction coming into effect.

Can a work capacity decision be reviewed?

Yes. There are three different types of reviews that can be requested by the worker and these need to be done in the order listed below.

1. Internal review which is done by the insurer
2. Merit review which is done by SIRA
3. Procedural review which is done by the Workers Compensation Independent Review Office.

If at the end of this review process the worker is not happy with the outcome they may seek a judicial review in the Supreme Court.

The Workers Compensation Commission cannot review a work capacity decision.

How to apply for an internal review?

To apply for an internal review the worker should complete and submit to the insurer the Work Capacity Application for Internal Review by Insurer form.

The worker must identify the decision that they are seeking a review of and provide reasons for the review. The worker may also supply additional information to the insurer which has not been taken into account.

The review can be made at any time but in order to have the protection of a “stay” the application should be lodged within 30 days of receiving the decision.

How long does the insurer have to respond to the request for an internal review?

The insurer has 30 days from the date the request for an internal review is received to make a decision. If a decision is not made within this time frame the worker may seek a merit review.

Can the insurer refuse to perform an internal review?

No. The insurer must complete an internal review.

How to apply for a merit review?

If the worker is not satisfied with the outcome of the internal review or the insurer has failed to respond within 30 days of receiving the internal review a worker can request a merit review from SIRA.

The worker must complete the work capacity application for merit review by the authority form. A copy of this request for a review must also be submitted to the insurer for their records.

The worker must make the application for merit review within 30 days of receiving the outcome of the internal review or within 30 days of the date at which the insurer should have made a decision on the internal review.

Can SIRA refuse to perform a merit review?

Yes but only if they believe that the application is frivolous or vexatious, the worker refuses to provide any additional information that has been requested or the application is made outside of the 30-day time limit.

Is the insurer bound by the outcome of the merit review?

Yes and the outcome should apply immediately.

How to apply for a procedural review?

If the worker is not satisfied with the decision made by SIRA following the merit review they can seek a procedural review from the Workers Compensation Independent Review Office.

To apply for a procedural review the worker must complete and submit to the Workers Compensation Independent Review Office the WIRO Application for a procedural review form. A copy must also be submitted to the insurer.

The request for a procedural review must be submitted within 30 days of receiving the outcome of the merit review.

The procedural review will only review the procedures used by the insurer to make the work capacity decision and not the merit of the decision.

Can the Workers Compensation Independent Review Office refuse to make a procedural review?

Yes but only if they believe that the application is frivolous or vexatious, the worker refuses to provide any additional information that has been requested or the application is made outside of the 30-day time limit.

Is the insurer bound by the outcome of the procedural review?

Yes and the outcome should apply immediately.

How long does the insurer have to determine a claim for weekly compensation?

The insurer has 21 days to determine a claim for weekly compensation.

Is weekly compensation taxed?

Yes, as it is deemed income.

How long does the insurer have to determine a claim for lump sum compensation?

The insurer has one month to determine a claim for lump sum compensation if the degree of permanent impairment is fully ascertainable. If the insurer requires additional information the insurer has two months to determine the claim after all relevant information has been provided, this can include obtaining a report from an independent medical examiner.
“Fully ascertainable” means that the degree of permanent impairment has been agreed to by the parties or determined by an Approved Medical Specialist.

When is a complying agreement required?

A complying agreement is only required when the insurer accepts the workers claim for permanent impairment or the worker accepts an offer of settlement from the insurer.

A complying agreement is not required when a certificate of determination is issued by the Workers Compensation Commission.

What are pre-injury average weekly earnings?

Pre-injury average weekly earnings (PIAWE) is a calculation performed by the insurer which determines an injured workers rate of weekly compensation.

It is the average of the worker’s earnings with the employer prior to injury for up to a period of 12 months.

During the first 52 weeks of weekly compensation, this calculation includes overtime and shift allowances. Other allowances are generally excluded. After 52 weeks of weekly compensation, the calculation is based on ordinary earnings only.

Are weekly compensation payments capped?

Yes. The maximum rate of weekly compensation as at 1 April 2017 is $2084.90.

This rate is indexed every April and October.

What constitutes a week of weekly compensation?

If during any seven day period a worker receives a payment of weekly compensation that constitutes a week, even if the payment is only for a day or a few hours.

What is a deductible amount?

It is the sum of the value of each non-pecuniary benefit that is provided by the employer to or for the benefit of the worker or a family member of the worker.

What are my entitlements to weekly compensation during the first entitlement period if I have NO capacity to work?

The first entitlement period is the first 13 weeks of weekly compensation.

During the first 13 weeks of weekly compensation where a worker has no capacity to work payments will be calculated at 95% of the workers pre-injury average weekly earnings or the maximum amount less any deductible amount.

This does not apply to police officers, firefighters, paramedics and volunteer emergency services workers who are entitled to weekly compensation under a different scheme.

What are my entitlements to weekly compensation during the second entitlement period if I have NO capacity to work?

The second entitlement period is from weeks 14 to 130 of weekly payments.

During the second entitlement period if the worker has no capacity to work payments will be made at 80% of the workers pre-injury average weekly earnings or the maximum rate whichever is the lower amount less any deductible amount.

After 52 weeks any overtime included in the calculation of pre-injury average weekly earnings will be excluded.

This does not apply to police officers, firefighters, paramedics and volunteer emergency services workers who are entitled to weekly compensation under a different scheme.

What are my entitlements to weekly compensation during the third entitlement period if I have NO capacity to work?

The third entitlement period is from weeks 130 weeks to 260 of weekly compensation.

Workers are only entitled to payments of weekly compensation in the third entitlement period when they have no capacity to work if they have satisfied the following criteria:

• the worker has applied in writing to have their payments continue after the second entitlement period
• the insurer has assessed that the worker has no capacity to work and that this incapacity is likely to continue indefinitely

Workers who satisfy this criteria will be paid at 80% of their pre-injury average weekly earnings or at the maximum rate less any deductible amount. Workers who do not satisfy this criteria, will not be entitled to payments of weekly compensation after the second entitlement period.

This does not apply to police officers, firefighters, paramedics and volunteer emergency services workers who are entitled to weekly compensation under a different scheme.

What are my entitlements to weekly compensation after the third entitlement period if I have NO capacity to work?

After the third entitlement period payments of weekly compensation will cease unless the worker has 21% whole person impairment or more.

Workers who are entitled to payments of weekly compensation after the third entitlement period will be paid at 80% of their pre-injury average weekly earnings or at the maximum rate less any deductible amount.

This does not apply to police officers, firefighters, paramedics and volunteer emergency services workers who are entitled to weekly compensation under a different scheme.

What should an injured worker discuss with their nominated treating doctor during the initial consultation?

It is important that injured workers communicate with the nominated treating doctor exactly how the injury occurred. All injuries sustained in the accident should be recorded even if they appear to be minor at the time as it is often the case that minor injuries turn out to be more significant than first thought and it is difficult to add additional injuries later. All of these injuries should then be recorded not only in the clinical notes but also on the certificate of capacity which should be issued by the nominated treating doctor and provided to the employer and insurer.

Injured workers should always check that the doctor has recorded all information on the certificate of capacity and that all information is correct, prior to leaving the consultation. Any incorrect information should be corrected immediately.

What should the nominated doctor consider when determining an injured workers capacity to work?

Nominated treating doctors are constantly under pressure to return injured workers to work as soon as possible.

Whilst the goal of the scheme is to return workers to work, doctors have a responsibility to ensure that a worker has the capacity to return to work in a safe and durable manner. In order to do this the doctor not only needs to be aware of the workers injury but must also have an understanding of the workers work environment and what their job entailed and what suitable duties will be provided if the worker is unable to return to their pre-injury duties.

If a doctor is unaware of the duties the worker will be required to perform there is a risk that the worker will return to work too soon and will sustain further injuries. For example there is a big difference between the duties a worker who has an office job will be required to perform compared to a retail worker or construction worker. The availability of suitable duties will also differ vastly within these positions. It is therefore important that the doctor is fully aware of the situation they are putting the worker in. The injured worker must clearly communicate with their doctor about their role and the nature of their work and the availability of suitable duties.

What is a secondary injury?

A secondary injury is an injury that arises after the initial injury and because of the initial injury. For example a worker may have a right shoulder injury but then their left shoulder is injured as a result of relying on it more to compensate for the original right shoulder injury. Another common secondary injury is the development of a psychological injury such as depression or anxiety as the injured worker struggles to come to terms with their injury and the impact it has on their life.

It is important that any secondary injuries be listed on the certificate of capacity and reported to the insurer. An injured worker should also seek a determination on liability for the secondary injury to ensure that they will be able to claim compensation for all injuries.

A secondary injury is not an injury that was sustained at the time of the accident but not detected until later.

Can a worker be compensated for a secondary injury?

A worker is entitled to receive weekly compensation and medical treatment for secondary injuries provided the insurer accepts liability for these injuries.

In respect to receiving a lump sum, a worker can be compensated for secondary physical injuries but not for a secondary psychological injury.

Can the insurer suspend or reduce payments of weekly compensation?

The insurer may suspend or reduce payments of weekly compensation if the worker fails to:

• provide a current certificate of capacity
• provide relevant documentation such as wage records, medical reports or statutory declarations that have been requested by the insurer
• attend medical appointments
• participate in a return to work program
• comply with return to work obligations.

The insurer may also seek to reduce payments by making a work capacity decision.

What is a work capacity decision?

A work capacity decision is a decision made by the insurer after they have assessed an injured workers capacity to work taking into account their injury, restrictions and vocational ability.

If the insurer decides a worker has capacity to work they will calculate what the workers ability to earn is and adjust payments of weekly compensation accordingly.

Who do I speak to first when I have been injured at work?

If you have been injured at work it is advisable to speak to a qualified workers compensation lawyer as soon as possible to make sure that you are receiving appropriate workers compensation benefits and to maximise potential claim outcomes. You should also inform your employer so they can contact their insurer. If your worker’s compensation claim is disputed, Taylor & Scott can communicate with the insurer and negotiate on your behalf, with the weight of the law on your side.

What could count as a workplace injury?

Workplace injuries can occur in any workplace situation although they are more common in dangerous and physically demanding jobs, although they can occur due to wide-ranging harmful, unplanned or critical situations that arise. Risks and hazards in the workplace include falling from heights, heavy lifting, repetitive strain, unsafe and slippery floors, poorly maintained equipment, falling debris and many more. Employers and business owners are obliged to create a safe and healthy environment for employees and visitors, with any negligence or breach of duty of care potentially causing injuries that can result in workers compensation and work injury damages claims.

What is included in medical expenses?

If you are injured in a work injury a range of medical expenses may be paid by the worker’s compensation insurer.

Medically related treatments

Any treatment by a doctor, physiotherapist, osteopath, chiropractor, psychologist, an exercise psychologist, remedial massage therapist, counsellor or other allied health practitioners can be covered. You are also eligible to claim for nursing care and medical supplies outside of the hospital, along with the provision of artificial aids. Domestic assistance is available provided you have sustained more than 15% diminished physical capacity as a result of the injury.

Hospital treatments

This includes treatment received at both public and private hospitals and accredited rehabilitation centres.

Ambulance services

These services include emergency services, non-emergency services and hospital transfers overseen by the Ambulance Service of NSW.

Workplace rehabilitation services

A range of assistance is available, including return to work programs, vocational assistance, job or workplace modification and other return-to-work programs.

Travel expenses

This includes travel by taxi, bus, train or ferry for attending treatment centres for your injury. You can also claim the cost of petrol for travel to appointments, and if you are unable to travel alone, the insurer is obliged to pay for travel assistance.

Are there time limits on my medical expenses claim?

If you have been injured at work, the worker’s compensation insurer will be liable to pay all medical and hospital expenses provided they have been preapproved by the insurer (this does not apply to expenses incurred in the first 48 hours after an injury) while ever weekly compensation payments are paid. If no weekly compensation payments are paid the insurer will be liable to pay medical, hospital and related expenses for up to 2 years from the date of injury. If weekly payments of compensation are paid, the insurer will be liable to pay medical, hospital and related expenses for up to 2 years from the date of the first cessation of payments. If you have sustained at least 11% whole person impairment the 2-year time limit becomes a five-year time limit. If you have sustained at least 21% whole person impairment, there is no time limit to claim for medical expenses. Your Taylor & Scott Lawyer will guide you through the claims process.

How long does the insurer have to make a decision on medical treatment?

The insurer has 21 days to determine a claim for medical expenses.

What is domestic assistance?

Domestic assistance can include a lot of tasks around the home that you are no longer able to carry out due to pain or injuries. This includes household cleaning, laundry, lawn and garden care, plus transport needs not covered by medical, hospital and rehabilitation expenses.

Can I claim for domestic assistance?

In order to claim for domestic assistance an injured worker must:

• Be certified by a medical practitioner that domestic assistance is reasonably necessary based on a functional assessment and that the need for domestic assistance arises from the injury;
• Establish that the worker performed the domestic task prior to the injury;
• Have 15% whole person impairment or more.

In some situations, temporary assistance may be available for up to three months.

What is secondary surgery?

Secondary surgery is surgery that is a direct consequence of an earlier surgery and affects a part of the body affected by the earlier surgery and that is approved within two years from the date the original surgery was approved.

The actual surgery, however, does not need to occur within this two-year time frame; it just needs to be approved.

What information do I need to make a medical expenses claim?

In order to make a legal claim for medical expenses, you will need to provide receipts related to your claim. These can include receipts related to medical and hospital treatments, ambulance services, rehabilitation services and travel expenses. Your claim number should be attached to all documents. If an employer or insurer disputes your medical expenses claim, Taylor & Scott will examine the documents and support your claim wherever possible for best possible outcomes. For legal advice related to your medical expenses claim, medical negligence, lump sum payments and other important matters, contact us today.

What is provisional liability?

Provisional liability is an interim decision on liability. It allows for financial assistance to be provided whilst the claim is investigated and a decision on actual liability is made.

How long is provisional liability?

Provisional liability is for a period of 12 weeks or up to $7,500 in medical expenses whichever occurs first.

Why can the insurer refuse provisional liability?

When the insurer refuses provisional liability the claim is reasonably excused. The reasons the insurer can reasonably excuse the claim include:

• Insufficient evidence that the injured person is a worker
• Insufficient medical evidence
• The worker cannot be contacted
• The worker refuses to allow the insurer to access personal information such as health records
• The insurer believes the injury is not work related
• There is no requirement for weekly compensation
• The injury was reported more than 2 months after it occurred

When can provisional payments be ceased?

Provisional payments can be stopped if:

• The worker doesn’t provide a certificate of capacity
• The worker doesn’t provide an authority allowing the insurer to obtain information about the injury
• The worker has returned to work and there is no further loss of earnings or need for medical treatment
  Liability is determined

How long does the insurer have to determine a claim for property damage?
The insurer has 28 days to determine a compensation claim for property damage, which includes damage to clothing, crutches, artificial members, aids, teeth or spectacles.

What are my entitlements to weekly compensation during the first entitlement period if I have capacity to work?

The first entitlement period is the first 13 weeks of weekly compensation.
During the first 13 weeks of weekly compensation where a worker has capacity to work, payments will be calculated at 95% of the workers pre injury average weekly earnings or the maximum amount less any earnings, capacity to earn or any deductible amount.
This does not apply to police officers, fire fighters, paramedics and volunteer emergency services workers who are entitled to weekly compensation under a different scheme.

What are my entitlements to weekly compensation during the second entitlement period if I have capacity to work?

The second entitlement period is from 14 to 130 weeks of weekly compensation.

If a worker has capacity to work and is working 15 hours or more, weekly payments are paid at 95% of the workers pre injury average weekly earnings or the maximum rate less actual earnings and any deductible amount.

If the worker is working less than 15 hours per week, weekly payments are paid at 80% of the workers pre injury average weekly earnings or the maximum rate less actual or capable earnings and any deductible amount.

This does not apply to police officers, fire fighters, paramedics and volunteer emergency services workers who are entitled to weekly compensation under a different scheme.

What are my entitlements to weekly compensation during the third entitlement period if I have capacity to work?

The third entitlement period is from weeks 130 weeks to 260 of weekly compensation.
Workers are only entitled to payments of weekly compensation in the third entitlement period when they have capacity to work if they satisfy the following criteria:

• the worker has applied in writing to have their payments continue after the second entitlement period
• the insurer has assessed that the worker has capacity to work
• the worker is working 15 hours per week or more
• the worker is earning $183 per week or more
• the insurer has assessed the worker to be working to their full capacity and that the worker is likely to be incapable of undertaking further employment or additional work to increase their earnings indefinitely.

Workers who satisfy this criteria will be paid at 80% of their pre injury average weekly earnings or at the maximum rate less any earnings and any deductible amount. Workers who do not satisfy this criteria, will not be entitled to payments of weekly compensation after the second entitlement period.

This criteria does not apply to workers with high needs.

This does not apply to police officers, firefighters, paramedics and volunteer emergency services workers who are entitled to weekly compensation under a different scheme.

What is a worker with high needs?

A worker with high needs is a worker who has 21% whole person impairment or more, including workers who have not yet been assessed but the insurer is satisfied that the level of impairment is likely to be 21% or more. It also includes workers whose assessment of impairment is pending as an approved medical specialist has declined to make the assessment on the basis that the worker has not yet reached maximum medical improvement.

What is a worker with highest needs?

A worker with highest needs is a worker who has 31% whole person impairment or more, including workers who have not yet been assessed but the insurer is satisfied that the level of impairment is likely to be 31% or more. It also includes workers whose assessment of impairment is pending as an approved medical specialist has declined to make the assessment on the basis hat the worker has not yet reached maximum medical improvement.

Can the insurer arrange a factual investigator?

The insurer can arrange a factual investigator to interview injured workers and other witnesses to obtain a statement to assist with the determination of liability.
Insurers can also use factual investigators to conduct surveillance and obtain footage of injured workers after their injury as a way of establishing how injured workers perform daily activities post-injury.

Why might the insurer deny liability?

There are a number of reasons why the insurer may deny liability for injury, weekly compensation, medical treatment or lump sum compensation. These reasons can include:

• Injury was not sustained at work
• The injured person is not a worker for the purposes of workers compensation
• Employment was not a substantial contributing factor
• If the injury is a psychological injury then the injury was wholly or predominately caused by the reasonable actions of the employer
• Medical treatment is not reasonably necessary
• Incapacity doesn’t result from the injury or there is no incapacity
• There is no permanent impairment or the threshold requirements are not satisfied

What does the insurer need to include in a denial notice?

When the insurer denies liability for injury or weekly payments, medical or lump sum compensation they must provide a written denial notice to the worker. This denial notice should:

• Set out the reasons for denying liability
• List the documents taken into consideration in making the decision
• Set out how to request a review
• Where the worker can seek assistance
• Where to go to dispute the decision

When can the insurer arrange an Independent Medical Examiner?

The insurer can arrange an independent medical examination if information from the treating doctors is inadequate, unavailable or inconsistent or the insurer cannot resolve issues directly with the injured worker’s treating doctors.

How much notice do the insurers have to provide workers before a medical appointment?

Insurers have to provide at least 10 working days notice before a medical examination unless the worker agrees to a shorter time frame.

Can injured workers choose which independent medical examiner they are seen by?

The insurer should provide injured workers with a choice of three independent medical examiners to choose from unless there are less than three examiners who can adequately assess their injury. The appointments should be as close to the workers home as possible.

If however the worker has been examined by an independent medical examiner within the last two years the worker should be examined by the same examiner.