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Workers’ Compensation – A Practical Legal Guide for those Injured at Work in WA

//Workers’ Compensation – A Practical Legal Guide for those Injured at Work in WA

Workers’ Compensation payments are payable to an employee who suffers a psychological or physical injury whilst at work. The Workers Compensation and Injury Management Scheme is a ‘no fault’ system, meaning that there is no requirement to establish that an employer was at fault to make a claim. The legislative framework surrounding the Scheme is to be found in the Workers’ Compensation and Injury Management Act 1981, and the government agency responsible for overseeing and regulating the Scheme is WorkCover WA.

HOW DO I SUBMIT A CLAIM?

  1. If you are injured at work, the first step is to notify your employer of the injury You should ensure that all injuries, no matter how small are reported to your employer and you should request a claim form 2B from your employer or download a copy from the WorkCover WA website You will then need to see your General Practitioner and request a first medical certificate.
  2.  You will then need to see your General Practitioner and request a first medical certificate.
  3. Both the completed claim form 2B and the first medical certificate should then be provided to your employer to make the claim.

Tips

  • Ensure that all injuries are listed on the first medical certificate. This is because injuries that are not identified on the first medical certificate could be rejected as part of the claim at a later date.
  • An injured employee has the right to choose who their treating general practitioner, physiotherapist, specialists and rehabilitation providers are. You do not have to see your “employer’s doctor”. At the start of a claim, see a general practitioner who you are comfortable with, if possible, as it is likely that this practitioner will be heavily involved in your injury management and rehabilitation throughout the claim.
  • Keep a copy of the completed claim form 2B and the first medical certificate together with any proof of submitting the claim, for example, emails to your employer.

Upon receiving the claim, your employer has five days to lodge the form with its insurer, and the insurer has a further 14 days to respond to the claim.The Workers’ Compensation insurer, within 14 days, must confirm if the claim is either accepted, declined, or pended (put on hold) for further investigation or medical reports to be obtained.

If the claim is declined, there is an appeals process or conciliation service available through WorkCover WA.

If you do not receive a decision on your claim within the above mentioned time frame, or if your claim is pended or declined, it is strongly recommended that you seek legal advice immediately.

WHAT COMPENSATION AM I ENTITLED TO RECEIVE?

1. Weekly Payments of Compensation (loss of wages)

Loss of wages will be paid pursuant to the scheme where you are totally or partially incapacitated for work.

Calculating your weekly payments depends upon whether you are a worker working under an industrial award or not.  Most employees receive a salary similar to their usual salary (including overtime payments) for the first thirteen weeks following injury, and will then step down to a lower amount which excludes any overtime and bonuses.

Often disputes arise in relation to the calculation of weekly payments, and it is recommended in the event of such a dispute, that legal advice is sought.

There is a prescribed amount in relation to weekly payments, which is the maximum amount that an injured worker can receive in terms of weekly payments for loss of wages, during the lifespan of the claim.

Tip

  • Ensure that you have your wage slips from the 13 week period prior to your injury available for inspection, to help with accurately working out your pre-injury average income in the event of a dispute.

2. Reasonable Treatment, Rehabilitation and Travel Expenses.

The scheme covers reasonable travel expenses together with reasonably required medical expenses associated with general practitioners, specialists, and rehabilitation services.

Again, there is a prescribed amount in relation to these expenses, which is the maximum amount that an injured worker can receive in terms of treatment, rehabilitation and travel expenses, during the lifespan of the claim.

Often disputes arise in relation to payment of treatment expenses, where for example, there is a disagreement as to the reasonable requirement for surgery following an injury. It is recommended in the event of such a dispute, that legal advice is sought.

Tips

  • Seek out treatment providers of your own choice.
  • A rehabilitation provider may be appointed by your employer or insurer to assist with your return to work program. Your return to work may be a complicated process, requiring specialist input and a period of readjustment, or even retraining. It is strongly recommended that you exercise your right to appoint a rehabilitation provider of your own choice to support you through the process.

3. Permanent Impairment Lump Sum

In some cases, following an injury at work, you may be left with a permanent impairment or incapacity which you are entitled to receive a lump sum payment for.

In this instance, you will need to attend a permanent impairment assessment with an approved medical specialist.

Assessment of lump sum awards is complicated, and where you have residual impairment following an injury at work, no matter how small, it is recommended that you seek independent legal advice.

WHEN SHOULD I RETURN TO WORK?

Your treatment providers, medical specialists and rehabilitation provider will work with you to facilitate your return to work following injury.

At all visits to your general practitioner or specialists, you should be provided with an updated progress medical certificate. This certificate will indicate your fitness for work, whether you are totally unfit, partially or fully fit for duties. Often, you may be certified as fit for work with modified duties.

Each certificate will be provided to your employer, and if suitable duties are available you are obliged to attend work and undertake those duties. Your rehabilitation provider will assist with your return to work program, and making sure that your duties correspond with the restrictions identified on your medical certificates.

Often disputes arise when an employee or employer are not satisfied with a return to work program. It is recommended in the event of such a dispute, that legal advice is sought.

Tips

  • Ensure that you are fully compliant with your treatment program and attend all appointments.
  • Ensure that your medical certificates are always up to date and that you are clear in relation to what duties you are/ are not certified as fit to undertake.
  • Choose your own rehabilitation provider.
DISPUTES
In the event of any dispute, WorkCover WA as the regulator of the Scheme, offer a dispute resolution and conciliation process.

WHEN IS A WORKERS’ COMPENSATION CLAIM SETTLED?

A claim cannot be finalised until you have reached maximum medical improvement. That does not mean that you have to be fully recovered, and often employees can be left with a permanent impairment following an injury at work.

What this means is that you have made as good a recovery as you are going to make and there is no prospect of further improvements over time or with further treatment.

In order to settle your claim, you will need to undertake a medical examination to determine any permanent impairment, by an approved medical specialist. Strict guidelines are in place for assessing permanent impairment.

A determination of the value of your claim will involve an assessment of your personal circumstances and includes your capacity for work at the time of settlement, your ongoing need for medical treatment and any permanent impairment.

If you are approaching settlement of your claim, or have received an offer of settlement, it is strongly recommended that you seek independent legal advice.

Tips

  • Do not settle your claim if you have ongoing medical issues arising from your workplace injury, you will be responsible for any future medical expenses once your claim is settled.
  • Seek independent legal advice before settling a Workers Compensation claim.

COULD I PURSUE A COMMON LAW CLAIM?

Where the workplace injury has arisen as a result of an incident which was the fault, or partial fault of the employer, and the injury sustained is severe enough to attract a whole person impairment of at least 15%, you may be able to pursue a common law claim against your employer outside of the statutory workers’ compensation scheme.

You must elect to pursue a common law claim within 12 months of lodging a workers’ compensation claim. This is known as your ‘termination’ day, and the workers’ compensation insurer must notify you in writing of your termination date 6 months after you have made the claim.

If you do not elect to make a common law claim by the termination date, you will forfeit the right to make a common law claim.

Once you elect to make a common law damages claim, your entitlement to payments pursuant to the Scheme is affected.

Tips

  • Do not settle your claim if you have ongoing medical issues arising from your workplace injury, you will be responsible for any future medical expenses once your claim is settled.

CONCLUSION

Workers’ Compensation claims often require specialist knowledge and expertise. Frichot Lawyers offer a free confidential, no obligation appointment to injured workers.

By Dawn Williams, Senior Associate, Frichot Lawyers.

* For a free, no obligation consultation with Dawn, to discuss your claim please call Frichot Lawyers on 08 9335 9877.

2020-07-20T03:24:01+00:00