New South Wales & Victoria
• Injuries that occur on the way to or from work (workers who are injured while driving during the course of work may claim compensation)
• Pain and suffering – but if you have whole person impairment (WPI) of 10% or more, you will receive tax free lump sum compensation
• Heart attack (unless your employment contributed to the heart attack)
• Stroke (unless your employment contributed to the stroke)
• Disease (unless the workplace is the main cause of the disease)
• Mental harm or nervous shock suffered by a relative or dependant that arises in connection with the death of or injury to the worker (unless the pure mental harm is a work injury – that is, an injury to the worker)
• Whole person impairment less than 10%
• You suffered an injury. You consider that you have sustained permanent damage. If the level of whole person impairment is greater than 10% , a lump sum will be paid. The lump sum is free of tax. Only one claim can be made.
• The lump sum depends on the extent of your whole person impairment. The extent of your impairment must be assessed by a WorkCover NSW accredited medical specialist.
• Only one report (for assessment of your whole person impairment) can be obtained from a medical specialist. The medical specialist will assess your whole person impairment. The WPI assessment will be used to assess the amount of your lump sum.
• The benefits payable for whole person impairment change from time to time. If you enter “ benefits guide ” in the search engine for the WorkCover NSW website (www.workcover.nsw.gov.au) you will find the current benefits guide.

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• If you have genuine whole or partial incapacity for work (which must be certified by a doctor), you may be entitled to receive weekly payments of income support.
• The amount of weekly compensation will be calculated as a percentage of pre-injury average weekly earnings (with a maximum compensation amount of $1,838.70) minus any current earnings, any amount the worker is able to earn in suitable employment, or any non-pecuniary benefits received by the worker from the employer.
• The weekly payments are lumped into three periods (weeks 1-13, weeks 14-130, and after week
130) and there are set statutory formulas established by the NSW Parliament to determine the rate of the weekly payments. The formulas vary in each of the three periods and differ depending on whether the worker has some capacity or no capacity to work.
• The weekly payments for workers with no capacity are calculated as follows (slight variation of formula for workers with capacity): o
For weeks 1-13, the lesser of: o
95% of the worker’s pre-injury average weekly earnings (AWE) minus the value of any non-pecuniary benefits that are provided by the employer (any benefits) or the maximum weekly compensation amount of $1,838.70 minus any benefits.
For weeks 13-130, the lesser of:
80% of the worker’s AWE minus any benefits o or the maximum weekly compensation amount of $1,838.70 minus any benefits.
For weeks after 130, the lesser of:
80% of the worker’s AWE minus any benefits or the maximum weekly compensation amount of $1,838.70 minus any benefits.
• Subject always to repeated medical examination, and certification by doctors as to your work incapacity, you may be entitled to 2.5 years of weekly payments. For most workers, weekly payments will not be paid for more than 2.5 years.
•
Weekly payments will continue after 2.5 years if the worker has no current work capacity and is likely to continue indefinitely to have no current work capacity. A worker who is assessed as having current work capacity may be entitled to weekly payments beyond 2.5 years if the worker: o has applied to the insurer no earlier than 52 weeks before the end of the 130 weeks for continuation of weekly payments after the 130 week period

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Your NSW Workers’ Compensation Claim
3 o o has returned to work for a period of not less than 15 hours per week and is in receipt of current weekly earnings of at least $155.00 per week is assessed as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings.
• If you are a very seriously injured worker, with whole person impairment exceeding 20%, you may be able to receive weekly payments of compensation for a period greater than 5 years. If your whole person impairment is 20% or less, all weekly payments rights cease at 5 years following your injury.
• You may be entitled to medical cover (the cost of reasonable medical treatment in relation to your injury or condition) if the requirement for treatment claimed for has been substantially contributed to by the work injury.
• The cost of your medical treatment and related expenses will be limited to treatment and services provided within 12 months after a claim for compensation is first made, or within 12 months after weekly payments cease, whichever provides a longer period (unless you are an injured worker with more than 30% whole person impairment).
• You will need to keep all tax invoices/receipts. You must clear all costs in advance of incurring them. You should do this by contacting the workers’ compensation insurer in advance of the appointment. The workers’ compensation insurer will not pay the costs of any treatment if the treatment is given without prior approval, if the treatment is given by a person who is not qualified to give the treatment, or if the treatment is given by a doctor whose registration is limited or subject to conditions.
• The Workers' Compensation Act provides a range of benefits. It is illegal for an employer to act in a biased way against you because you make a claim. It is compulsory for employers to have workers’ compensation insurance. Workers’ compensation is a worker’s right, not a privilege.
• If your whole person impairment exceeds 10%, you will receive tax free lump sum compensation, and your legal costs will be paid by WorkCover NSW in accordance with a schedule of costs established by a government regulation. If there is a dispute in relation to your claim that is required to be determined by the Workers’ Compensation Commission of NSW, each party to the dispute (you and the workers’ compensation insurer) must pay their own costs.

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• You will have to cover the cost of hospital records, treating doctor’s records, radiology records, and the specialist medical report (which is required to be obtained to determine your level of permanent bodily impairment). The cost of these reports would not normally exceed $1,500.00. This amount will not be able to be recovered (as each party must pay their own costs).
• There is no court. Disputes are managed by the Workers Compensation Commission, which is a government authority. In rare cases, the commission will convene a hearing before it. Most cases are resolved without need for a hearing.
• If you wish to claim, you will be given a questionnaire and medical authorities for you to complete and sign. The authorities enable us to obtain your treatment records and medical reports. Without medical assessment of your impairment, you are not permitted by WorkCover to make a claim for a lump sum.
• To commence your claim, you must undergo medico-legal examination. Dr James Rowe, a specialist occupational physician of Melbourne, travels to Albury on a monthly basis to see our injured worker clients.
• For Dr Rowe to see our injured worker clients and to provide impairment reports, his must be paid in advance of the appointment. Dr Rowe's fee is $1,430.00 and is to be paid into our trust account upon confirmation of the appointment.
• Dr Rowe will provide his tax invoice and receipt to our office. A copy will be provided to you.
• You will not be able to be assessed until your condition is stable.
• If your injury is stable, and you would like to proceed with an appointment with Dr Rowe, we will arrange for such appointment and will write to both you and Dr Rowe to confirm it.
• The cost of the medical report (Dr Rowe) can be an obstacle to some workers advancing their claims. Most of our injured worker clients do eventually manage to make the cost (often with the assistance of family members or friends).

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• In very rare cases, an injured worker may be able to bring a claim of a type known as a
“ negligence claim ”.
•
To bring a negligence claim, the injured worker must be very seriously injured, with impairment of at least 15%. Very few injured workers reach the 15% threshold.
• If the injured worker is assessed with whole person impairment of at least 15%, he/she may be able to bring a negligence claim. For such a claim to succeed, however, there must be negligence on the part of the employer.
• If the injured worker can establish both impairment of at least 15% and employer negligence, a negligence claim can be made. Such claims are limited to economic losses – lost wages, etc.
• If the injured worker brings a negligence claim for his/her economic losses, once the claim is resolved, the injured worker’s rights to all other benefits, including income support and medical treatment, terminate. For this reason, negligence claims require very careful consideration and should not be lightly be commenced.
• You can find out more about workers’ compensation in NSW by going to the website of WorkCover
NSW. The website is www.workcover.nsw.gov.au.
Lavington
2/346 Griffith Road (PO Box 594), Lavington, NSW 2641
DX 5835, Albury, NSW
Telephone: (02) 6049 6666
Facsimile: (02) 6040 1840
Wodonga
18 Jarrah Street, Wodonga, VIC 3690
Melbourne
74/299 Queen Street, Melbourne, VIC 3000
GIBNEY & GUNSON
Lawyers
New South Wales & Victoria www.gibneygunson.com.au mail@gibneygunson.com.au