What is workers’ compensation?
An injury or illness caused during your employment may entitle you to receive financial compensation as stipulated by the Workers’ Compensation and Injury Management Act 1981 (WA) (Act). All employers in WA are required by law to have a valid and current workers’ compensation insurance policy covering all employees for injuries or illnesses sustained at work.
Does mental injury count?
A mental disorder can affect a person’s capacity to work and is classified as an injury or illness provided it was sustained at, or is a result of, work. There are various causes of mental disorders (or stress and anxiety) such as:
- exposure by a worker to a traumatic event;
- occupational violence against a worker;
- harassment against a worker;
- work pressure;
- bullying directed at a worker.
Anyone who is injured or becomes ill as a result of work and is defined as a worker pursuant to the Act, has a claim for workers’ compensation entitlements. Section 5 of the Act defines a “worker” as:
- on commission;
- a contractor and sub-contractor (with exceptions); and
- a working director (with exceptions).
What can i claim?
Workers’ compensation entitlements include loss of earnings (also known as weekly payments), payable to you in the same manner and frequency that you are normally paid, which are capped (limited) to twice the average weekly earnings for an adult in WA.
Also forming part of compensation entitlements are claims for medical expenses such as:
- First Aid;
- GP and specialist attendances;
- Occupational therapy;
- Chiropractic manipulations;
- Pathology; and
- Exercise programmes.
Rehabilitation costs to assist you in staying in or returning to work due to the injury sustained at work are also claimable.
Your reasonable travelling expenses incurred for trips to and from the medical treatments and appointments as well as trips to the rehabilitation provider are all claimable and form part of your compensation entitlements. You should keep a record of all such trips. If you live outside Perth, the costs of accommodation and meals are also claimable.
You may be entitled to an additional lump sum payment (Schedule 2 payment) from the employer or its insurer if your injury or illness is a permanent physical or psychological impairment. This is dependent on the nature and extent of your injury after having been evaluated by a WorkCover WA approved doctor (Approved Medical Specialist or AMS) who will provide your Whole of Person Impairment (WPI) expressed as a percentage. The WPI assessment is normally provided when your condition has stabilised and will not change.
Can I sue my employer?
You may also be entitled to sue your employer in the District Court of Western Australia in certain circumstances and claim common law damages. Common law damages are damages that may be awarded to you by a judge (or agreed upon with your employer or its insurer prior to trial). To be awarded common law damages you will have to prove that the injury or illness you sustained at work was due to the negligence of your employer and must comply with the following requirements to commence a common law claim in the District Court of WA:
- your WPI assessment by the AMS must be 15% or more; and
- you must indicate your willingness to commence common law proceedings by electing to do so on an Election to Retain Right to Seek Damages Form before the Termination Day.
The Termination Day is defined in section 93M of the Act to be a date one year from the date that your claim for weekly payments was made with your employer. If after a period of 3 months from when the claim is made with your employer, you are notified that the claim has been accepted then the Termination Day is 9 months after you were so notified. If your claim is related to an industrial disease such as asbestosis, mesothelioma, lung cancer or chronic bronchitis, then the Termination Day does not apply to your claim.
What steps do i take?
If you suffer an injury at work, you should report the injury immediately and take the following steps:
- seek first aid immediately;
- report the injury to your employer if you are able to do so;
- go to the GP of your choice;
- request your GP to complete a First Certificate of Capacity;
- request a Claim Form from your employer;
- complete the Claim Form and hand it to your employer with a copy of the First Certificate of Capacity as soon as possible within 12 months from the injury; and
- keep copies of all documents
You are required to submit a notice of an injury and make a claim for compensation as soon as practically possible after an injury. If you allow the expiry of 12 months from the date of the injury, you would need to obtain legal advice, as it may be too late if you wait for the Termination Day to approach. If you do not progress with a legal claim (not just reporting a workers’ compensation claim) then you may lose your right to claim. We recommend that you contact us as soon as possible and we will attempt to get through the claim procedure as quickly as possible by seeking the relevant expert medical advice from your doctors to ensure that your claim is settled at the right time. We will answer all your questions about legal costs at the first free consultation with you. However, in the event of a successful resolution of your claim, your employer or its insurer will make a contribution to cover a large portion of your costs.
Is the first consultation free?
The first consultation is free with no obligation on your part to proceed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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