SIRA Logo

Exempt workers

You may be eligible to receive workers compensation payments depending on the type, nature and severity of your work related injury or illness.

The first step in claiming compensation for a work related injury or illness is to notify your employer and the insurer of the injury. If you haven’t done this, please see What to do first. After the insurer has been notified of the injury, they will contact you to confirm they have the required information to start assessing your claim.

What is an exempt worker?

The term ‘exempt worker’ refers to specific classes of workers for which most of the amendments made to the Workers Compensation Acts in 2012 and 2015 do not apply. These classes of workers include:

  • police officers
  • paramedics
  • fire fighters.

Amendments made to timeframes, some entitlements and decision making about entitlements introduced in 2012 do not apply to the above classes of workers. This page outlines your obligations and entitlements if you are an ‘exempt worker’.

Weekly payments

You may be entitled to weekly payments when a work related injury has resulted in:

  • total or partial incapacity for work due to a work related injury
  • loss of earnings due to the incapacity.

To demonstrate this, you must provide a medical certificate to the insurer. Your doctor can use the workers compensation certificate of capacity for this purpose.

Within 21 days of receiving your claim, the insurer must:

  • accept liability and commence weekly payments, or
  • dispute liability.

The insurer may also require more information from you during this time to make an informed decision.

If the insurer disputes your claim, there’s help available. Our workers compensation disputes section has more information.

Calculating your weekly payments

The insurer will calculate weekly payments based on the following:

  • Average weekly earnings (AWE): This is the average amount you were receiving each week over a period of time (usually the last 12 months of your employment, including overtime and shift allowance).
  • Current weekly wage rate (CWWR): This applies when you are employed under an agreement that fixes a rate for a weekly or longer period. If no such agreement exists, the CWWR is calculated to be 80 per cent of your average weekly earnings.

If you have two sources of employment (another employer or self-employed) the insurer may ask you for more information to assist in correctly calculating your AWE.

The insurer should tell you the amount they will pay. You may receive payments direct from your employer or the insurer within your usual pay cycle.

Weekly payment amounts will depend on, but are not limited to:

  • whether you have total or partial incapacity
  • how long you have received weekly payments
  • whether you have been able to return to work.

Provisional payments

Sometimes the insurer will start paying you weekly payments (and medical expenses) while they fully assess your claim. These are weekly payments under provisional liability. The amount of the weekly payment will be calculated as detailed above.

Provisional payments can include weekly payments for up to 12 weeks, and payment of medical expenses up to $7,500. It extends the time allowed for the insurer to make a decision on liability.

Payments when you are unable to work

During the first 26 weeks

In general, as an exempt worker you are entitled to weekly benefits based on your current weekly wage rate (CWWR) before the injury.

For workers paid under an award, industrial or enterprise agreement, your weekly wage rate is calculated at 100 per cent of your CWWR (excluding overtime, shift work, payments for special expenses and penalty rates).

For those not employed under an award, industrial or enterprise agreement, your weekly wage rate is calculated at 80 per cent of your average weekly earnings (AWE) (including regular overtime and allowances).

After 26 weeks

In general, after the first 26 weeks of incapacity, the weekly benefit paid to you will be:

  • a fixed rate, known as the 'statutory rate' or
  • 90 per cent of your average weekly earnings, whichever is lesser.

The statutory rate is indexed twice each year in April and October. The statutory rate for a single worker from 1 October 2017 to 31 March 2018 is $494.30.

If you have dependent children and/or a spouse, additional payment allowances are also available.

Find the rate for earlier time-frames in our workers compensation benefits guide.

Payments when working

If you are partially incapacitated and return to suitable work you will earn income for the hours you work.

If this income is less than what you earned before your injury (for example, you are working part time or working at a lower pay rate), then you may also receive a weekly payment, often referred to as 'make up' pay.

Make up pay is usually calculated based on the difference between your average weekly earnings (AWE) (including overtime, shift work and penalty rates) and the amount you are earning while in suitable work.

Note: The amount of make up pay cannot exceed the amount you would receive if you were totally incapacitated.

During the first 26 weeks

Your weekly payments are calculated as the lesser of:

  • your average weekly earnings minus your actual earnings, OR
  • the weekly amount that you would be paid if totally incapacitated:
    • your current weekly wage rate (CWWR), or
    • 80 per cent of average weekly earnings (AWE) if not employed under an award.

If CWWR is more than the maximum weekly compensation amount (currently $2,101.70), the insurer will use $2,101.70 to calculate your entitlements. This amount is indexed in April and October each year.

After 26 weeks

Your weekly payments would be capped by the statutory rate.

the weekly payment amount is calculated as your AWE minus your actual earnings. This weekly payment amount is capped at the official statutory rate and cannot be more than you would earn if you were totally incapacitated.

The statutory rate is indexed twice a year in April and October. The statutory rate for a single worker from 1 October 2017 to 31 March 2018 is $494.30.

Find the rate for earlier time-frames in our workers compensation benefits guide.

Payments when you have partial capacity for work and suitable work is not available

A weekly payment may be paid if you have some capacity to work, but not full capacity to return to your pre-injury role. This payment may be made if your pre-injury employer does not provide you with suitable work.

To be eligible, you must be:

  • partially incapacitated for work and not suitably employed, and
  • undertaking reasonable steps to obtain suitable employment including job seeking and/or undergoing rehabilitation or training.

If no suitable work is provided, you will receive a weekly payment for a maximum of 52 weeks while seeking employment.

During the first 26 weeks

For the first 26 weeks where you have partial incapacity (including any period of total incapacity already taken), you may receive your current weekly wage rate (CWWR).

For example, if you have been totally incapacitated for the first 10 weeks following your injury and you gain capacity for suitable work but no work is available, you will be paid your CWWR for a maximum of 16 weeks.

After 26 weeks

For any remaining period up to a total of 52 weeks, you may receive:

  • the greater of 80 per cent of your CWWR, or
  • the statutory rate.

After this, if you continue to have capacity for work, you may be entitled to make up pay.

This payment will be based on an assessment of your capacity for work and will most likely be at the statutory rate.

Medical, hospital and rehabilitation expenses

You may be eligible to claim the costs of some or all medical treatments and services.

This can include:

  • treatment by medical practitioners, physiotherapists, chiropractors, osteopaths, psychologists, counsellors, exercise physiologists,  and other allied health practitioners
  • provision of artificial aids
  • domestic assistance services
  • nursing, medical and medicine supplies (provided outside of hospital treatment)
  • modifications to your home or vehicle.

Eligibility and how to claim treatment and services

Medical, hospital and rehabilitation expenses will be paid where the treatment or service:

  • meets the definition described in section 59 of the 1987 Act
  • is reasonably necessary.

You or the service provider should give the insurer enough information to determine whether the treatment or service you have asked for is/was reasonably necessary.

The information may include:

If the insurer requires more information, they should contact the treatment or service provider first.

Travel expenses

You can claim for travel to attend medical, hospital and rehabilitation appointments.

You will need to keep:

  • a record of the kilometres if you use a private motor vehicle
  • receipts for public transport.

If you're using a private motor vehicle, the maximum amount payable is $0.55 per kilometre.

If you require an escort to travel with you for an approved treatment or service, they are also able to be reimbursed for fares, travel costs and maintenance that have been necessarily and reasonably incurred.

Lump sum compensation for permanent impairment and pain and suffering

You may be eligible for a lump sum compensation payment.

Lump sum payments for permanent impairment include:

  • permanent impairment sustained as a result of a work related injury or illness
  • pain and suffering arising from the impairment.

Permanent impairment

In order to claim lump sum compensation as a result of a physical injury, there must be some permanent impairment.

For psychological injuries (primary) a claim for lump sum compensation may be made where the impairment is assessed at 15 per cent or more.

You may be entitled to make more than one lump sum compensation claim.

Once the insurer has received your claim for lump sum compensation for permanent impairment, it must accept liability and make a reasonable offer of settlement, or dispute liability. This must take place within one month, unless the insurer does not have all the information they require.

If the insurer determines that they require additional information regarding the claim, they must (within two weeks of receiving your claim):

Pain and suffering

You may also claim lump sum compensation for any pain and suffering you have experienced as a result of the injury or illness.

In order to make a claim for pain and suffering there must be an agreed permanent impairment of 10 per cent or more, OR the permanent injury is 10 per cent of the maximum compensation payable in the Table of Disabilities.

If your injury claim was made prior to 1 January 2002, please refer to the Table of Disabilities for the applicable eligibility criteria.

Making a claim

Complete the exempt claimant permanent impairment claim form and submit it to the insurer. The claim forms list the information that must be supplied when making a claim.

View detailed information on benefits for permanent impairment and pain and suffering in the workers compensation benefits guide.

Property damage

You don’t have to be injured to claim for property damage.

You are eligible to claim the reasonable cost of repairing or replacing an item(s) damaged in a work related accident.

You can do this by applying to your employer's insurer in writing. You should include the following information to support your claim:

  • that the accident happened because of or during your employment
  • the types of items damaged and their value, and
  • how they were damaged.

Property which is able to be claimed includes:

  1. artificial aids
  2. clothing

Artificial aids

The maximum amount payable for damage to artificial aids is $2,000. This may be increased by a direction from the Workers Compensation Commission.

Artificial aids can include:

  • artificial eyes
  • false teeth
  • crutches
  • artificial limbs
  • spectacles.

Compensation can include:

  • the reasonable cost of repair (or if necessary, the replacement) of the artificial aid
  • the service costs of qualified people (eg consultations, prescriptions and examinations) in repairing or replacing the artificial aid
  • the loss of wages associated with attending consultations, prescriptions and examinations to repair or replace the artificial aid.

Clothing

This can include compensation for the repair, and if necessary, the replacement of clothing damaged in the accident.

The maximum amount payable for damage to clothing is $600. This amount may be increased by a direction from the Workers Compensation Commission.

The insurer must determine liability within 28 days of receiving the claim.

Payments in the event of death

Compensation may be payable for a work related death.

The insurer, when notified of the death, should write to the worker’s family or the family’s legal representative to advise compensation may be payable. As soon as the insurer has determined liability the family or legal representative will be advised.

The following sources of information can help determine liability if required:

  • information from the employer and witnesses
  • any factual information
  • the death certificate
  • treating medical records
  • the coroner’s or autopsy report
  • the police report.

If the insurer accepts liability for a work related death:

  • dependants of a worker whose death was a result of a work related injury on or after 24 October 2007 are entitled to:
    • a lump sum payment (where there are no dependants the payment is made to the legal personal representative)
    • weekly payments for each dependent child up to the age of 16 (or 21 if they are in full-time education)
    • reasonable funeral expenses.
  • dependants of a worker whose death  was a result of a work related injury before 24 October 2007 are entitled to:
    • a proportion of the lump sum payment applicable to their degree of dependency on the worker at the date of death
    • weekly payments for each dependent child up to the age of 16 (or 21 if they are in full-time education)
    • reasonable funeral expenses.
  • death benefits payable for a worker whose death was as a result of a work related injury received before 30 June 1987 include:
    • a lump sum
    • weekly payments for each dependent child up to the age of 16 (or 21 if they are in full-time education).

What funeral expenses the insurer will pay for

Funeral expenses are limited to a maximum of $15,000 and may include the :

  • funeral director's professional fees
  • cost of the funeral service (including cremation or burial)
  • coffin
  • mourning car
  • cemetery site
  • flowers
  • newspaper notice
  • death certificate.

The insurer may in addition, pay expenses for the cost of transporting the worker's body.

Commutation

Did you know? A commutation is an agreement between you and the insurer, where you have accepted a settlement offer from the insurer. This agreement must be registered with the Workers Compensation Commission (WCC).

Once registered, you are no longer entitled to receive weekly payments or claim medical, hospital and rehabilitation expenses for an injury referred to in the agreement.

Preconditions for a commutation

A commutation is only available when SIRA has certified that the following preconditions have been met:

  • you have an injury that has resulted in permanent impairment of at least 15 per cent
  • compensation for permanent impairment has been paid
  • it has been more than two years since you first received weekly payments for the injury
  • all opportunities for injury management and return to work have been fully exhausted
  • you have received weekly payments (regularly and periodically) during the last six months
  • you have an entitlement to ongoing weekly payments
  • weekly payments have not been reduced or discontinued as a result of you not complying with your return to work obligations.

You, your legal representative or the insurer can make the application for the certification that all preconditions have been met. The completed application must include all relevant information about your claim.

Commutation agreement

Once you and the insurer agree to both the commutation and the amount, and SIRA certifies that you have met the preconditions, you can proceed to register the commutation agreement with the WCC.

Before entering into a commutation agreement, you must receive independent legal advice. The legal advisor must certify in writing that you have been advised:

  • on the full legal implications of the agreement
  • that it is in your best interest to get independent advice about any financial consequences before entering into the agreement.

You will also be required to confirm in writing that you have received and understood this legal advice, as part of the agreement process.

The commutation agreement must be registered with the WCC in order to take effect.

Once the agreement is registered by the WCC, the insurer must pay the money:

  • within seven days of the registration, or
  • within a longer period if the agreement specifies one.

Work injury damages

What are work injury damages?

'Work injury damages' is the term used to describe monetary compensation that can be agreed by settlement or is awarded by a court in civil action to an individual who has been injured through the wrongful conduct of another party.

In NSW most workers with a work related injury are limited to being able to claim work injury damages for past loss of earnings and future loss of earning capacity only. This type of compensation is often referred to as modified common law damages.

A work injury damages settlement extinguishes all further entitlements to workers compensation benefits (including weekly payments, and medical, hospital and rehabilitation expenses) associated with that injury.

The amount of weekly payments that have already been paid to the worker may have to be repaid out of the settlement amount.

The amount of damages payable can also be reduced if the worker's own negligence contributed to the injury.

Eligibility

To claim work injury damages, the following criteria must be met:

  • The work injury must be the result of employer negligence.
  • You must have at least 15 per cent permanent impairment (assessed by a permanent impairment assessor with qualification, training and experience relevant to the body system being assessed), and this assessment has been accepted by the insurer or determined by the Workers Compensation Commission (WCC).
  • You have received all statutory lump sum entitlements for permanent impairment to which you are entitled before a work injury damages claim can be settled.

Some work injury damages claims may result in court proceedings. If starting court proceedings for work injury damages, you must do so within three years of the injury date, unless you have the Court's approval.

Lodgement process

If you would like to claim for work injury damages, your claim must be in writing to the insurer and include information such as:

  • what the injury is and any impairments arising from it
  • when the injury happened
  • any previous injury or condition which has caused or may have caused part of an impairment (including any related compensation)
  • previous employment which may have caused the injury
  • alleged negligent acts of the employer and any supporting documentation
  • the economic loss being claimed as damages and any supporting documentation.

A report from a permanent impairment assessor must be included in your claim. For more information on what the report should contain, see the lump sum compensation for permanent impairment page.

Once the permanent impairment has been agreed by all parties (or determined by an approved medical specialist) and no further appeals have been made, the insurer has one month to determine liability for your claim.

If the insurer requires more information from you, they must tell you within two weeks of receiving the above information and explain what they require to help make a liability decision. Once they receive the additional information, they may take up to two months to determine liability.

If the insurer has accepted liability they must make an offer of settlement that sets out the amount of damages or a way to determine this amount.

If you do not agree with their offer of settlement, you may wish to consider starting mediation or court proceedings.

Court proceedings can only start at least six months after the injury is reported to the employer. Court proceedings can only be commenced more than three years after the date of injury, with the approval of the Court.

Before you can start mediation or court proceedings for work injury damages, you must serve a pre-filing statement setting out the particulars of the claim, and the evidence you will rely on to establish or support the claim on your employer or the insurer.

In most cases, the claim must be referred for mediation in the WCC before starting court proceedings.

The WCC will attempt to mediate and reach settlement through discussion with all parties.

If an agreement cannot be reached, work injury damages claims are most commonly heard in the District Court.

Legal advice and costs

You should seek independent legal advice before beginning a work injury damages claim.

If you are unsure how to locate a suitable legal representative you can contact the Law Society of NSW.

It's common for work injury damages matters to settle 'inclusive of costs'. In practical terms, this means that legal costs are deducted from your settlement amount.

How much a solicitor can charge for representing you in a work injury damages claim is included in the Workers Compensation Regulation 2016.

You may enter into an individual cost agreement with your solicitor and the solicitor may charge more than the amount shown in the regulation if your matter is heard in Court. If you are uncertain as to what you should do, seek the advice of the Law Society of NSW.

Further information

If your work injury damages claim is unsuccessful, you can continue to receive workers compensation under the statutory scheme (if you are entitled) but you are likely to be liable for court costs incurred during the work injury damages claim.

Read the guidelines for claiming workers compensation for more information.

Worker representation

You may be entitled to costs for legal representation and may seek to recover these costs through the Workers Compensation Commission.

If you would like assistance and representation from your union, you must provide the insurer with your consent.

Work break and journey claims

You may be able to claim for injuries incurred during work-breaks and journeys to and from work.

Find out more about these claims and how to apply.

Hearing impairment claims

You may be eligible to claim for the cost of reasonably necessary hearing aids and certain hearing tests.

Read more about this benefit.

Further information

Reducing or discontinuing weekly payments

The insurer may decide to reduce or discontinue weekly payments after assessment and information regarding:

  • your ability to earn, or
  • whether or not you have capacity for work exceeding your current working hours.

The insurer must notify you of the reasons for the reduction or discontinuation and provide you with a sufficient notice period.

The required notice depends on how long you have received weekly payments:

  • if you have received weekly payments for a continuous period of at least 12 weeks but less than one year - two weeks' notice is required
  • if you have received weekly payments for a continuous period for one year or more - six weeks' notice is required.

Retirement

A worker injured after 30 June 1985 is entitled to receive weekly payments for up to 12 months after reaching retiring age.

The retiring age is defined in more detail in the Workers Compensation Act 1987 and section 23 of the Social Security Act 1991.

Maximum weekly compensation amount

The maximum weekly compensation amount is capped and indexed in April and October each year. The maximum amount from 1 October 2017 to 31 March 2018 is $2,101.70 per week.