Permanent impairment and exempt workers

Published: 12 August 2019
Last edited: 12 August 2019

Permanent impairment and pain and suffering

Exempt workers can claim compensation for:

  • permanent impairment as a result of a work injury, and
  • pain and suffering arising from the impairment.

Exempt workers can make more than one claim for permanent impairment compensation.

An exempt worker’s claim for permanent impairment compensation can include compensation for:

Type of loss

Date of injury

Eligibility

Permanent impairment

For an injury received on and after 1 January 2002

  • There is permanent impairment from a physical injury
  • The permanent impairment for a primary psychological injury is at least 15%

Permanent injuries

For an injury received before 1 January 2002

Refer to the Table of Disabilities1

Pain and suffering

 
  • The agreed permanent impairment is 10% or greater, or
  • The agreed permanent injury is 10% of the maximum compensation payable in the Table of Disabilities1

1 See the Workers compensation benefits guide.

Claiming for an injury received on or after 1 January 2002

To make a claim for permanent impairment compensation the claim must be in writing and describe:

  • what the injury is and any impairments arising from it
  • when it happened
  • any previous injury, condition or abnormality, which caused or might have caused part of an impairment, including any related compensation
  • any previous employment, which caused or might have caused the injury.

The claim must include a report from a permanent impairment assessor listed on the SIRA website as trained in the assessment of the part or body system being assessed. The report must include:

If the claim is the first notification of the injury, the worker must supply information to show that:

Exempt workers can use this claim form to make their claim.

Claiming for an injury received before 1 January 2002

To make a claim for permanent impairment the claim must be in writing and describe:

  • what the injury is and any impairments arising from it
  • when it happened
  • any previous injury, condition or abnormality, which caused or might have caused part of an impairment, including any related compensation
  • any previous employment, which caused or might have caused the injury.

It must also include:

  • the percentage amount of loss or impairment measured of an injury described in the Table of Disabilities
  • a medical report from a medical practitioner supporting the amount of loss or impairment claimed
  • if the claim relates to hearing loss, a copy of the audiogram used for the medical report.

If your claim is the first notification of the injury, the worker must  supply information to show that:

Exempt workers can use this claim form to make their claim.

Determining a claim for lump sum compensation

The insurer must, within the timeframes, either:

  • accept liability and make a reasonable offer of settlement, or
  • dispute liability.

The timeframes for determining a claim for lump sum compensation are:

  • within one month after the degree of permanent impairment first becomes fully ascertainable, as agreed or as determined by an approved medical specialist, or
  • within two months after the worker has provided to the insurer all the relevant details about the claim.

This timeframes can be extended if the insurer determines that all the relevant information about the claim has not been provided. In that case, the insurer should, within two weeks of receiving the claim:

  • ask the worker to supply this information, and/or
  • arrange for a permanent impairment assessor listed on the SIRA website to examine the worker, and give the worker details of the appointment.

In these cases, the two-month timeframe for determining the claim begins on the date the worker supplies the requested information or attends the examination.

Settlement

When a worker and an insurer agree as to the degree of permanent impairment that has resulted from the injury and the payment of permanent impairment compensation, any agreement must be in writing. This written agreement is called a 'complying agreement'.

A complying agreement is not valid unless the insurer is satisfied that the worker has obtained independent legal advice or waived the right to obtain independent legal advice, before entering into the agreement. The insurer is required to record evidence that this advice has been obtained or waived in the details of the agreement.

The Workers Compensation Commission (the Commission) may award compensation additional to the compensation payable under a complying agreement if:

  • it is established the agreed degree of permanent impairment is manifestly too low, or
  • the worker has been induced to enter into the agreement as a result of fraud or misrepresentation, or
  • since the agreement was entered into, there has been an increase in the degree of permanent impairment beyond that so agreed.
S21. Negotiation on degree of permanent impairment
Principle
Where appropriate, parties will be encouraged to consider negotiating and agreeing the degree of permanent impairment.

Disputes about permanent impairment

Disputes may arise about the level of impairment, deductions for the proportion of the impairment that is due to a previous injury or pre-existing condition, or the injuries included in the assessment.

Once the insurer has disputed liability it must notify the worker. Ideally, the insurer will call the worker to discuss the decision. This will be followed by a written decision notice.

The decision notice

The insurer decision notice should be in plain English and must include:

  • a concise and easy-to-understand statement of the reasons for the decision and the issues relevant to the dispute (using the approved decision notice summary form)
  • the relevant sections of the legislation on which the insurer relies
  • a statement identifying all the reports and documents submitted by the worker in making the claim for compensation, and by the employer in connection with the claim
  • a statement identifying all the reports that are relevant to the decision, whether or not the report supports the reasons for the decision, as per clause 41 of the Workers Compensation Regulation 2016 (2016 Regulation)
  • if the insurer believes the release of a report may be detrimental to the health and/or safety of the worker or any other person a statement advising that a copy of a report required to be provided by the insurer under clause 41(3) of the 2016 Regulation (except as provided by clause 41 (5) or (6)) accompanies the notice
  • that the worker can request (in writing) the insurer to review their decision
  • a statement to the effect that the worker can seek advice or assistance from a union or lawyer
  • that the worker can seek advice or assistance from the Workers Compensation Independent Review Office (WIRO) on 13 94 76
  • that they can contact the Registrar of the Commission by email registry@wcc.nsw.gov.au or post to Level 20, 1 Oxford Street, Darlinghurst NSW 2010.

Where an insurer fails to provide a copy of a report as required by the Regulations, that report is not admissible in proceedings in relation to the dispute concerned.

The liability dispute notice can be delivered personally to a worker or by post. Where provided by post, the dispute notice is taken to have been delivered to the worker on the seventh working day after it was posted.

Resolving a dispute

The worker can apply for a review of the insurer decision, or proceed directly to the Commission to have the dispute resolved.

The worker can proceed to the Commission even while waiting for the outcome of an internal review by the insurer.

See ‘Resolving complaints and disputes' for more information.

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