Weekly benefits payments
The employer commences payment of weekly compensation from the date the worker gives notice of the injury to the employer. If a worker makes a claim in relation to an injury, the insurer is liable to pay weekly compensation and costs in relation to the injury from the date of the injury until the insurer rejects or settles the claim.
While a worker is totally incapacitated by a work-related injury, the worker will receive their average pre-injury weekly earnings for the first 26 weeks from the date of the injury. Where there was a regular and established pattern of earnings, average earnings may take into account other employment and overtime. After the first 26 weeks of incapacity, the injured worker receives and amount calculated in accordance with the Workers Compensation Act 1951(the Act).
The employer must immediately give the injured worker any payments from the insurer.
Payment may cease if the injured worker fails to participate and cooperate with their personal injury plan and any medical examinations that have been arranged. An injured worker must make all reasonable efforts to return to work as soon as practicable.
Partial incapacity payments are weekly payments to an injured worker who commences duties in which he or she is earning less than before the injury. This occurs when the worker is not able to fully resume their former duties because of the injury.
Partial incapacity payments may be paid to make up the difference between the partial return to work earnings, and the injured worker's average pre-incapacity weekly earnings. After the first 26 weeks of incapacity, payments may make up the difference up to an amount calculated in accordance with the Act.
Medical treatment and related expenses
The cost of medical treatment and other expenses relating to a compensable injury are payable to the injured worker. Other expenses may include clothing that was damaged or lost as a result of the accident, the amount of wages lost by the worker whilst attending treatment, transport to and from the treatment, and the cost of accommodation (including meals) if required.
A worker who has suffered a permanent injury listed in Schedule 1 of the Act, as the result of a compensable injury, may be entitled to receive a lump sum payment, as compensation for the permanent injury.
Schedule 1 of lists body parts and senses subject to compensation and assigns to each a percentage of a statutory maximum, the single loss amount. Workers who suffer loss of use of parts of the body mentioned in Schedule 1 of are entitled to compensation for the loss, based on the percentage of the single loss amount listed in Schedule 1.
The single loss amount under the Act is $100,000 CPI indexed. Workers may get payments for 2 or more losses through injury however they are not entitled to receive more than the maximum loss amount, which is $150,000 CPI indexed.
Note that the nature of injury in Schedule 1 is predicated on an injured worker being right-handed. If an injured worker is predominantly left-handed, then the compensation percentages are reversed. For example, the loss of the right hand is 70% of the single loss amount whereas loss of the left hand is 65%. For a worker that is predominantly left-handed, the percentages are reversed.
Where several related losses are described by a single greater loss listed in Schedule 1, then the single greater loss only applies. For example, the loss of a leg below the knee includes the loss of a foot and will be compensated as a loss, or a proportionate loss, of the leg below the knee. Loss of an only arm, leg, hand or foot will be treated as the loss of both arms, legs, hands or feet.
Assessment of permanent impairment is conducted in accordance with approved medical guidelines. They are currently the American Medical Association Guides to the Evaluation of Permanent Impairment (5th Edition); and the New South Wales WorkCover Guides for the Evaluation of Permanent Impairment (3rd Edition). Medical Practitioners who conduct permanent impairment assessments should also advise in their reports, details of relevant training they have undertaken.
For a list of medical practitioners who are recognised as assessors of permanent impairment refer to the NSW WorkCover website.
A permanent injury claim cannot be made earlier than two years after the injury unless:
- the magistrates court allows it to be made
- the injury has stabilised (the workers injury is taken to have stabilised if he or she has returned to work at previous work hours and has been working those hours for at least three months)
The injured worker may also be entitled to seek common law damages if the injury was a result of the employer's negligence. Should the injured worker wish to pursue this option they must do so within three years and they would need to consult a lawyer.
Proportionate loss of use
If a loss suffered by a worker consists of the loss of a proportion of a body part or sense as outlined in Schedule 1 of the Act, the compensation will be equal to the proportion lost by the worker, of the percentage of the single loss amount listed in Schedule 1.
Previous injury or pre-existing condition
When working out compensation payable for losses, an amount must be deducted from the compensation for any proportion of the loss due to a previous injury or a pre-existing condition or abnormality. If it proves difficult or costly to work out the proportion of the loss, it is assumed that the proportion is 10% unless this assumption is contrary to the available evidence.
Compensation for hearing loss
In assessing loss of hearing due to specific noise related injuries such as boilermaker's deafness, no compensation will be paid if the total hearing loss is less than 6%. For example when working out the percentage hearing loss because of boilermaker's deafness, the loss is worked out as a proportionate loss of hearing of both ears, even if the loss of hearing is in one ear only. Loss of hearing attributed to age is taken to be 0.5 decibels for each complete year of a worker's age over the age of 55 years for a male and 65 years for a female.
If a work related injury results in the death of a worker, the dependents will be entitled to receive a single lump sum payment, funeral expenses and other benefits in accordance with the Act.
If a worker has received a compensable injury and dies within three months of receiving the injury, there are restrictions on compensation payable for losses relating to specific and other permanent injuries received at the same time.
On this page