If a worker is injured the worker must make an application to WorkCover or similar insurer for benefits. This application generally has to be made within six months. However, in some cases WorkCover has considered an application lodged outside the time and granted the worker statutory benefits. At the time that the application for compensation is submitted, it must be accompanied by a medical certificate from a medical practitioner. In the main this will be from a general practitioner. If the worker is severely injured it is possible for a relative or friend to complete the application form on behalf of the worker.

WorkCover has three months in which to make a decision as to whether or not they will grant statutory benefits. The two most important aspects required that WorkCover will consider in determining a claim is whether the worker is in fact “worker” under the terms of the Act.

Since 1996 the definition of a worker for the purposes of the legislation has changed considerably. During some periods the definition of worker was restricted to a “PAYE” earner. This definition has been changed under the current legislation and is now a little wider than a PAYE worker and in some circumstances will cover contractors.

The second important aspect that will be considered by WorkCover is whether the injury is an “injury” as defined in the legislation.

Often WorkCover will seek to reject a claim on the basis that the worker does not come within the definition of “worker” or has not suffered an “injury” as defined by legislation.

If a worker’s application is rejected, that is not the end of the matter. The worker does have rights to have the decision reviewed or appealed. In circumstances where such a rejection occurs the worker should obtain legal advice.

Danny Towne is member of the Australian Plaintiff Lawyers Association and is a Consultant with Rod Madsen solicitor.

Part 2 - Workcover Entitlements

Last week I spoke about submitting an application to Workcover. This week I will speak about Workcover entitlements.

Once WorkCover has accepted that the person is entitled to statutory benefits the worker would be able to obtain:

1. weekly benefits;
2. medical expenses;
3. funeral expenses;
4. travelling expenses;
5. rehabilitation expenses; and
6. other allowances.

If the worker does not receive the benefits that he or she believes they are entitled to, they can apply to have the matter reviewed and if that is not successful then to appeal the matter to an Industrial Magistrate.

Disputes between the worker and WorkCover will often arise when there is an argument as to the worker’s incapacity. WorkCover will often insist that the worker’s incapacity has stopped and that the worker should return to work. Often the worker will not feel that he or she is able to.

The worker will receive a full rate of pay for 26 weeks, but this will generally drop to 65% of the full wage after that time. This will often leave workers out of pocket in respect of thedifference.

WorkCover will then advise the worker when it considers that the worker’s injury is stable and stationary.

Danny Towne is member of the Australian Plaintiff Lawyers Association and is a Consultant with Rod Madsen solicitor.

Part 3 - Lump Sum Offers to Settle

In the past two weeks I have spoken about making Workcover statutory claims and what entitlements workers are entitled to.

This week I will speak of the issues facing workers when considering payouts from Workcover.

Workcover will often issue a Notice of Assessment and make a lump sum offer of compensation to the worker. In other words, WorkCover will advise that the worker has a residual working impairment and that they will compensate him/her by making an offer of settlement.

Often the worker will not be satisfied with the degree of permanent impairment as set out in the Notice of Assessment. In those circumstances the decision can be referred a body called the Medical Assessments Tribunal for them to review the decision. There is generally no appeal allowed from the Medical Assessment Tribunal, although if fresh medical evidence can be obtained and presented within a 12 month period it may change the decision.

Once WorkCover has provided a Notice of Assessment they will generally make an offer of lump sum compensation with a view to finalising the worker’s claim. This decision can be reviewed by an organisation known as Q-Comp. It is important to note that there is a three month time limit from the time that the worker receives the decision to apply for this review.

There are also rights of appeal to an industrial magistrate.

Danny Towne is member of the Australian Plaintiff Lawyers Association and is a Consultant with Rod Madsen solicitor.

Part 4 - Personal Injuries Claim

If a worker is injured the worker must make an application to WorkCover or similar insurer for benefits. This application generally has to be made within six months. However, in some cases WorkCover has considered an application lodged outside the time and granted the worker statutory benefits. At the time that the application for compensation is submitted, it must be accompanied by a medical certificate from a medical practitioner. In the main this will be from a general practitioner. If the worker is severely injured it is possible for a relative or friend to complete the application form on behalf of the worker.

WorkCover has three months in which to make a decision as to whether or not they will grant statutory benefits. The two most important aspects required that WorkCover will consider in determining a claim is whether the worker is in fact “worker” under the terms of the Act.

Since 1996 the definition of a worker for the purposes of the legislation has changed considerably. During some periods the definition of worker was restricted to a “PAYE” earner. This definition has been changed under the current legislation and is now a little wider than a PAYE worker and in some circumstances will cover contractors.

The second important aspect that will be considered by WorkCover is whether the injury is an “injury” as defined in the legislation.

Often WorkCover will seek to reject a claim on the basis that the worker does not come within the definition of “worker” or has not suffered an “injury” as defined by legislation.

If a worker’s application is rejected, that is not the end of the matter. The worker does have rights to have the decision reviewed or appealed. In circumstances where such a rejection occurs the worker should obtain legal advice.

Danny Towne is member of the Australian Plaintiff Lawyers Association and is a Consultant with Rod Madsen solicitor.

Part 5 - Making a Claim

Last week I wrote about a workers right to make a personal injuries claim. This week I will write about how a worker goes about making such a claim.

If the worker is entitled to bring a claim for damages the worker will generally present what is known as a “Notice of Claim for Damages”. This is quite an extensive document. It will include details of negligence and will generally include an offer to settle. The offer to settle will be supported by the worker’s tax returns and other employment records. It will also be supported by medical reports provided at the time.

The employer will then provide a notice advising as to what their attitude is in respect of liability. There is a heavy onus on the part of the employer to thoroughly investigate the incident and try to resolve the matter.

After this occurs the worker and his representative will confer with the employer’s insurer and try to resolve the claim. A high proportion of these claims settle at this compulsory conference.
In some cases this will not always be possible. In those circumstances the employee must commence his claim within 60 days of the compulsory conference.

Prior to instituting legal proceedings both the employer and the worker are required to exchange their final offers to settle. There are significant legal costs consequences which follow these final offers if the matter proceeds through the courts.

The worker must make an offer of settlement that is such that at a later date the court is likely to award more than what they have offered.

Similarly, the employer must make an offer that if the matter proceeds through the courts the employer will get a greater award from the court.

Danny Towne is member of the Australian Plaintiff Lawyers Association and is a Consultant with Rod Madsen solicitor.

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