Exempt workers

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.

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:

• your medical certificate of capacity recommending treatment
• allied health recovery requests
• specialist referrals or reports.

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 $0.58 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.

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):

• ask you to supply this information, and/or
• arrange for a permanent impairment assessor to examine you.

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.

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 can 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 Personal Injury 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 (e.g. 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 Personal Injury Commission.

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

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 should 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.

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 Personal Injury Commission (PIC).

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
• the injury is not a catastrophic injury.

NOTE: workers who are considered to have ‘catastrophic injuries’ (as defined in Part 9 of the Workers compensation guidelines) and eligible to access lifetime care and support services under the National Injury Insurance Scheme (NIIS), cannot commute their compensation for medical, hospital and rehabilitation expenses which ensure lifetime care and support services. However, these workers are still eligible to commute their weekly payment entitlements.

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 Personal Injury Commission.

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 PIC in order to take effect.

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

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

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 Personal Injury Commission (PIC).
• 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 PIC 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 workers compensation guidelines for more information.

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

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

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.

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

Read more about this benefit.