Workers Compensation Lawyers Bunbury

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    What is workers compensation?

    A personal 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. If you sustain a personal injury at work, please contact our no win no fee personal injury lawyers based in Bunbury to discuss what compensation you may be entitled to claim.

    Types of claims

    Stress claims

    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.

    A mental disorder sustained during your employment, to which such employment contributed, 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 illness sustained at work. As personal injury lawyers in Bunbury, A & E Legal Bunbury can assist with our legal services.

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    Stress Claims FAQs

    Stress-related claims are compensable in WA and in Bunbury, if you can establish that your work contributed to your illness to a significant degree. You will still have a workers compensation claim if you had a pre-existing mental disorder as long as your work stress is a significant or substantial contributor to your current mental condition.

    The Act contains certain provisions that limit the scope of stress claims where the stress arises out of various management and industrial relations issues, in other words the act excludes any claim caused by stress if the stress arises from any of the following:

    • your dismissal;
    • your retrenchment;
    • your demotion;
    • disciplinary proceedings against you;
    • your transfer or redeployment;
    • not being promoted;
    • having been reclassified in a job description;
    • you not being transferred or granted leave of absence or any other benefit.

    However, if the abovementioned exclusions were unreasonable and harsh on the part of your employer, you may potentially have a claim for stress arising out of one of the exclusions.

    You are required to submit a notice of a mental disease and make a claim for workers compensation as soon as practicable 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 proceed with a legal claim (not just reporting a workers compensation claim) immediately, then you may lose your right to claim compensation.

    We recommend that you contact us as soon as possible.

    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 services 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 some of the costs.

    Construction Accidents

    If you are a worker on a construction site, you are protected by the Work Health and Safety Act (WHS) and the WA Code of Practice for Construction Sites (Code) published in accordance with Section 274 of the WHS. The WHS and Code further regulates the duties and obligations of your employer on a construction site, which is deemed to include all work performed in respect of either commercial, civil or housing construction.

    Accidents causing death

    Personal injuries or illnesses caused during the employment of a worker that ultimately leads to his demise may entitle you to receive financial compensation as stipulated by the Workers’ Compensation and Injury Management Act 1981 (WA) (Act), provided you were dependant on such deceased worker. 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. Contact our Bunbury personal injury lawyers, A & E Legal can assist.

    Our experienced solicitors will engage on your behalf and assist you with lodging a claim with the deceased’s employer (and its insurer) for the compensation that you deserve resulting from your dependency on him or her, which should ultimately resolve by settlement or progression to a Conciliation or Arbitration at WorkCover WA.

    The funeral costs may be funded in different ways:

    • sometimes the employer pays for the funeral costs;
    • workers’ compensation insurance may pay the costs to the value of $9,714 (as at 1 July 2016);
    • the deceased’s will may contain details as to how the funeral costs may be funded;

    if any of the above do not apply, the deceased may have had some type of pre-paid funeral or life cover which may be triggered.

    Anyone who is a dependent of a defined worker pursuant to the Act has a claim for workers’ compensation entitlements. The Act defines a “worker” in section 5 as a worker who is:

    • full-time;
    • part-time;
    • casual;
    • seasonal;
    • on commission;
    • a contractor and sub-contractor (with exceptions); and
    • a working director (with exceptions).

    A “dependant” is defined in the Act to be a member of the workers’ family as were wholly or in part dependent upon the earnings of the worker at the time of his death, or would, but for the injury, have been so dependent. This includes a:

    • child;
    • step-child;
    • spouse;
    • de facto partner; and
    • parent.

    You can claim for:

    • a Notional Residual Entitlement amount (NRE);
    • a child’s allowance;
    • reasonable medical expenses incurred by the deceased prior to his death; and
    • funeral expenses including all Cemetery Board charges.

    The NRE amount is the amount of compensation payable to a dependant as prescribed by regulation on a yearly basis.

    A child’s allowance is the amount of compensation payable to a minor dependant as prescribed by regulation on a yearly basis.

    It is possible for the dependants of a worker who has died to receive compensation if the deceased worker had suffered an injury, but their death results from something other than the work injury. A lump sum payment may be available if the injured worker was in receipt of, or entitled to, weekly payments of compensation for not less than six months immediately preceding their death.

    Hearing Loss Claims

    Noise induced hearing loss (NIHL) 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 personal injury or illness sustained at work. Contact our Bunbury personal injury lawyers, A & E Legal can assist.

    Baseline Hearing Tests

    If your work environment is a prescribed noisy workplace, you must have a baseline hearing test within 12 months of starting your employment with the employer. A baseline hearing test is an audiometric test that establishes your baseline so as to compare any further tests done to your hearing i.e. it is a benchmark or frame of reference test. All future tests are compared to this test to determine the percentage of hearing loss experienced by you and determines the amount of compensation. It is your employers responsibility to arrange and pay for the baseline hearing test and any further subsequent hearing tests required.

    If you receive, or are likely to receive, a personal noise dose of 90dB(A) or above during any 8 hour shift in a typical work environment, the workplace will be categorised as a noisy workplace.

    It stands to reason that if you feel that you are suffering from hearing loss, you may request your employer in writing to send you for a hearing test. This must be done with an approved tester. Further tests may be done at the discretion of your employer on an annual basis.

    The testers send all tests results to WorkCover WA who will keep and monitor them. You will be provided with a copy of all tests. If your last test shows a loss of 10% or more from the baseline test, you:

    • will be notified by WorkCover WA of that fact;
    • WorkCover WA will arrange for further testing with an audiologist and an Ear, Nose and Throat Specialist (ENT);
    • if the ENT confirms the 10% loss, WorkCover will send you a Claim Form;
    • you must complete the Claim Form and return it to WorkCover WA;
    • WorkCover WA will then send the Claim Form to the employer who in turn sends it to its insurer;
    • you can then elect if you wish to lodge a claim with WorkCover WA.

    Frequently Asked Questions

    Anyone who is defined as a worker pursuant to the Act has a claim for workers’ compensation entitlements. The Act defines a “worker” in section 5 as a worker who is:

    • full-time;
    • part-time;
    • casual;
    • seasonal;
    • on commission;
    • a contractor and sub-contractor (with exceptions); and
    • a working director (with exceptions).

    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:

    • Ambulance;
    • First Aid;
    • GP and specialist attendances;
    • Hospitalisation;
    • Treatment;
    • Dental;
    • Physiotherapy;
    • Occupational therapy;
    • Chiropractic manipulations;
    • Psychiatry;
    • Psychology;
    • Pathology; and
    • Exercise programmes.

    Rehabilitation costs to assist you in staying in or returning to work due to the personal injuries sustained at work are also claimable.

    Your reasonable traveling 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 Bunbury, 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.

    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 personal 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 workers compensation claims are 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 workers compensation claim.

    If you suffer a personal 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
    • contact our workers compensation lawyers for assistance with in the matter

    You are required to submit a notice of an injury and make a claim for workers’ compensation as soon as practically possible after a personal 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 services 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.

    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.

    The first consultation with us is free with no obligation on your part to proceed. Our Bunbury compensation lawyers operate on a basis of no win no fee. When we meet, we will advise on all legal fees upfront, as well as your options going forward.

    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.

    You may also be entitled to sue your employer in the District Court of WA in certain circumstances for common law damages. These 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 psychiatric illness you sustained at work was due to the negligence of your employer.

    You have to comply with the following to commence a common law claim in the District Court of WA:

    • your WPI assessment 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.

    As an example, in the matter of Wilson v Riverton Rossmoyne Bowling and Recreational Club Inc [2015] WADC 54, the Plaintiff (Ms Wilson) worked as a casual barmaid for the Club. Ms Wilson elected to retain her right to seek common law damages and commenced proceedings in the District Court alleging that the Club owed her a duty to take reasonable care for her safety in the course of her employment, namely that they had to ensure that the she was not bullied, harassed or intimidated in the course of her employment, which she alleges she experienced. The Club denied these allegations. After analysing a host of evidence by various witnesses, both expert and casual, the Court concluded that the Ms Wilson had not been subjected to workplace bullying and that it was not reasonably foreseeable to the Defendant that she would suffer a psychiatric injury. In any event, the Court was not satisfied, on the available medical evidence, that Ms Wilson had sustained a psychiatric injury resulting in a whole of person impairment (WPI) of at least 15%, for which the Club would be liable.

    You may be entitled to an additional lump sum payment  (Schedule 2 payment) from the employer or its insurer if your personal 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 doctor (Approved Medical Specialist) who will provide your Whole of Person Impairment (WPI) expressed as a percentage. The WPI assessment is normally provided when your condition has stabilized and will not change.

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