Here is the latest update from UNIONS NSW:
What happens if you already receive weekly payments?
- If you already receive weekly payments, the insurer must conduct a work capacity assessment of you in the 12 months following proclamation* of the new legislation (although they can conduct the assessment before proclamation*).
- The new system will then apply to you 3 months after the date of the work capacity assessment.
- The new system has a different way of calculating your weekly benefit. Once you are put on the new system, this different calculation will be used. The calculation is based on “pre-injury average weekly earnings”. For everyone already on weekly payments their “pre-injury average weekly earnings” is defined as $906.25. You will be entitled to 95% of this amount for the first 13 weeks, then 80% of this amount thereafter. Injured workers working at least 15 hours a week will continue to receive 95% after week 14.
- If the work capacity assessment reveals you can work your former hours, either for your current employer or a different employer, payments may be terminated. No consideration is given to actual availability of work. The soonest this could happen is 3 months after the work capacity assessment.
- If the work capacity assessment reveals you have some incapacity, you will be entitled to weekly payments up to 130 weeks. However, the length of time you have already received weekly payments under the old system will count towards the 130 week cap for weekly payments.
Example: If you are assessed as only entitled to weekly payments for 130 weeks under the new system, but you have already been on weekly payments for 3 years, your weekly payments will be terminated 3 months after the work capacity assessment.
- If the work capacity assessment reveals you have no work capacity or you are working more than 15 hours a week but are incapable of extra employment you may be entitled to weekly payments beyond 130 weeks and up to 5 years. In this case, the length of time you have already received weekly payments under the old system does not count towards the cap for weekly payments.
Example: If you are assessed as entitled to weekly payments up to 5 years under the new system, and you have already been on weekly payments for 3 years, the timeline starts again and you can receive up to 5 years of weekly payments.
- If you have 20% Whole Person Impairment (“WPI”) you can continue to receive weekly payments after 5 years.
- Someone with 30% WPI will receive weekly payments under the new system from 27 June 2012 (when the legislation received assent**) and will not generally need to undergo a work capacity assessment.
- If you are receiving Section 38 payments under the old system, you can continue to receive those payments for the remainder of the Section 38 period under the old Act.
What is happening with Medical Expenses?
Medical and other treatment expenses are capped and will only be paid for a period of up to 12 months after you are injured or stop receiving weekly payments, whichever is longer. This means if your weekly payments are terminated 3 months after your work capacity assessment, the earliest your medical expenses will stop being paid is 12 months after that.
What happens if you have a new claim?
If you are injured at work after the new legislation is proclaimed*, your entitlement to weekly payments will be determined under the new system.
What happens if you have a Journey Claim?
If your journey happened before 19 June 2012 you will be covered. If your journey happened on or after 19 June 2012 you may not be covered. To be covered there must be a real and substantial connection between the employment and the accident or incident out of which the personal injury arose.
Journey claims may be subject to testing in the courts so contact your union to get advice about whether your journey claim fits this definition.
What happens if you have a claim arising out of a heart attack, stroke or disease?
If your heart attack, stroke or disease injury happened before 19 June 2012 you will be covered.
If your heart attack, stroke or disease injury happened on or after 19 June 2012 you may not be covered as definitions have changed. Contact your union to get advice about whether your injury fits the new definitions.
What happens if you have a claim for nervous shock?
If your harm that gave rise to your claim for nervous shock happened before 19 June 2012 you will only be covered if you have commenced court proceedings before 19 June 2012.
What happens if you have a claim before the Workers Compensation Commission?
The new system includes changes about the way costs are paid to lawyers. If you begin proceedings in the Workers Compensation Commission before the date the legislation receives proclamation*, costs for those proceedings will be calculated under the old system. Otherwise, under the new system you will be required to pay for the costs of your own lawyer.
What happens if you are a police officer, coal miner, paramedic, firefighter or someone covered by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987?
If you are one of these workers, you continue to be covered by the old system.
What happens if you want to make a claim for lump sum compensation?
If you lodged a claim for compensation before 19 June 2012 you will be covered by the old system.
If you didn’t lodge a claim for compensation before 19 June 2012 you will be covered by the new system. Under the new system lump sum payments are only available for serious permanent injuries, which are defined as greater than 10% WPI. Lump sum payments for pain and suffering have been removed. Further only one assessment of claims of permanent impairment is allowed for all permanent impairment, commutation or work injury damages claims.
What happens if you passed retirement age and are receiving weekly payments?
If you were aged 67 at the date the legislation is proclaimed* and were receiving weekly benefits, the old system applies.
* The date of proclamation is different to the date when the Bill passed through Parliament and different to the date of assent and may be in several weeks’ time.
**The date of assent was 27 June 2012. This is different to the date when the Bill passed through Parliament and different to the date of proclamation.
8 comments
Skip to comment form ↓
Bunny
July 16, 2012 at 8:13 pm (UTC 10) Link to this comment
Here is a hypothetical-
What happens if you were injured at work 4 years ago and were deemed by your specialist unable to work. You got a small settlement and did not argue for more (even though there were costs you decided to forgo to reach an earlier settlement) and you were comfortable with this as you knew that under the legislation you were entitled to weekly benefits and coverage for future medical costs. Now the legislation has changed and you find that there is a possibility that you will be entitled to only 130 weeks but that is gone too because you have already been receiving benefits for longer than that. Doesn’t that mean that a legal contract has been broken? Can you sue them? I would love a legal response to this as I know several people in this situation.
John McPhilbin
July 16, 2012 at 9:36 pm (UTC 10) Link to this comment
Meaning these people are under 20% WPI Bunny? Doesn’t seem they have any rights.
“If the work capacity assessment reveals you have some incapacity, you will be entitled to weekly payments up to 130 weeks. However, the length of time you have already received weekly payments under the old system will count towards the 130 week cap for weekly payments.
Example: If you are assessed as only entitled to weekly payments for 130 weeks under the new system, but you have already been on weekly payments for 3 years, your weekly payments will be terminated 3 months after the work capacity assessment.
If the work capacity assessment reveals you have no work capacity or you are working more than 15 hours a week but are incapable of extra employment you may be entitled to weekly payments beyond 130 weeks and up to 5 years. In this case, the length of time you have already received weekly payments under the old system does not count towards the cap for weekly payments.”
Phil
July 16, 2012 at 10:50 pm (UTC 10) Link to this comment
@Bunny, Generally a contract is valid for the period mentioned in the contract no matter whether it was written or verbal. It is enforceable from the date it is duly signed or agreed by parties and in effect from any agreed date. Unless an end date is mentioned, it remains valid indefinitely.
Contracts or agreements are promises agreed by the parties, which are legally enforceable. They are different from the decisions made by the courts. Any broken promise is called breach of contract.
Example of a simple rental contract between an owner and a tenant is like, “The tenant continues to pay rent from (date) till (date) at a rate of $500 per week”. It would be called a breach of contract, in case the tenant breaks his/her promise and stops paying rent.
Contracts or agreements could be simple to very complex in nature. Complex contracts have many conditions and pre-conditions. Examples are contracts between corporations or countries.
In your particular example, I assume, you have reached to an agreement under the NSW workers compensation acts. Once the amendments have been made to the laws and passed by the parliament, it has become law and your contract is subject to the new laws as the previous laws are repealed. You have lost most of your entitlements since 19th June 2012.
There are some exceptions, such as you join police force tomorrow or become any other emergency worker, your contract remains valid as before. If your injury is less than 20% WPI, try to join police force. Otherwise bad luck.
You might feel like betrayed but this is the fact. These are tailor made changes, passed in the middle of the night, especially to handle cases like yours. What to do, if you can’t win a game? Easy, change the rules which suit you most. This is what exactly been done by the Liberal Party.
I agree to John for most of the other things he mentioned above.
Disclaimer: This is my personal opinion and not a legal advice. I recommend you to seek legal advice before taking any action.
shane
July 16, 2012 at 11:39 pm (UTC 10) Link to this comment
In my situation , i have been on workers comp since 2006 (feb) , have had 7 knee operation on my left knee , have said no to an operation on my right because we were in the process of commutation which began about a month ago , offers from the insurance company had been made , we had countered offered , nothing had been sent to workcover , the insurance company are know sending me for a earnings capacity assessment and commutation is on hold until the assessment outcome ,my wpi has just been assessed again at 20 percent , is a earnings capacity assessment the same as works capacity assessment , unsure what is happening in my case , what will happen with this new legislation in my case , what happens if i dont get commutation , what will my wage be and for how long under this new legislation ,im have two young children and my wife only works on a casual basis . could you help me out here im a little concerned
cheers shane
John McPhilbin
July 17, 2012 at 8:46 am (UTC 10) Link to this comment
Hi Shane
I think it is really important to talk with your solicitor – also, I have it on good advice that despite proposed changes to the legislation claiming from this point on injured workers will have to pay their own legal bills – this is not the case NOR IS IT LIKELY TO BE THE CASE IN THE FUTURE – THANK GOD. This is not a brush-off – first things first. It’s important not to panic about ‘what ifs’.
Also please feel free to contact me on to discuss further if you would like – : (02) 9749 7566 If you are unable to get through on this phone please send an email with your name and contact details to john.mcphilbin@injuredworkerssupport.org.a
Bunny
July 17, 2012 at 8:57 am (UTC 10) Link to this comment
Thanks John and Phil and I emphasize with your situation Shane. I feel the only way to stop this totally unfair situation is a law case against the government. The legislation is retrospective despite what O Farrell says about it. Under common law in this state, courts rarely accept legislation that is retrospective and there are cases where they have thrown out ‘retrospective legislation’ . Apparently as there is no date on when the retrospective starts or ends in this new law there is a problem. I am not a lawyer and I certainly do not have the funds to fight this, but it seems to me that even with the wait, it would be worthwhile considering. The only alternative is for thousands of injured workers to suffer the breach of faith inherent in these new laws. My only hope is that some legal entities with a conscience take this on, otherwise so many of us will be at the mercy of insurance clerks and the most vicious government this state has ever seen.
Phil
July 17, 2012 at 10:19 pm (UTC 10) Link to this comment
Everybody is sure about one thing that these new changes to the laws are controversial. For new claims, it appears comparatively easy; however, it would be interesting to see how they are going to deal with the old claims. So far it appears they are going to do some mix and match as things are not as clear as black and white.
Any court order is generally backed by the government because it ensures the credibility of its own. Courts make their decision based on the laws provided to them by the government. It is the responsibility of any government that the orders made by courts must be implemented in totality. Now, shamelessly this govt has broken those promises, and obviously the trust. On what basis a court would make a decision, if the government changes the law on a daily basis. Believe me or not, these laws are being reviewed and changed on a daily basis. More likely you would hear a new thing or two on a daily basis. In that situation, what a severely injured person should do, who has nobody to look after? How long he/she must survive to be assured that a complete set of regulations would be available for him/her to follow and one day he/she can see justice being done? Old laws are repealed and new laws are not ready; do whatever you can I’m going fishing.
I’d like to make it clearer with an example. Let’s say you continue to deposit some amount in a superannuation fund. Just before your retirement age, you are told that superannuation scheme is being abolished as it has become financially unsustainable. What would you do or who would you sue? All of your money is lost, but you cannot do much. I used it as an example, but don’t be surprised it that really happens.
Another example is like buying a government bond. They normally pay less interest than private banks because they are backed by the government and thus more credible. What’d you do if government backs off after taking all your money? You may wish to file a lawsuit upon refusal, but what if, all the relevant laws would be repealed just before the day you were about to file the case.
You cannot fight with a shameless government, which does not follow its own rule, however you can throw it out of power. It could be difficult especially when you have a severe injury. If the laws are truly retrospective as being said, you might need to pay back all the money you have already received.
I do not want to disappoint/discourage anyone. One thing is for sure, these changes are against the natural justice and highly offensive. Secondly, they are contradictory to many existing laws. Thirdly, they are interfering with the judiciary. Fourthly, they are discriminatory as they promote a two tier system. Fifthly, they are not uniform and treat two persons differently even though they belong to the same group. Sixthly, they are monopolistic which is against any democratic principle. There should always be some provision for checks and balances to avoid any danger of dictatorship. Seventhly, they are against the constitution. There are many more to be debated, are the Liberals ready?
Gail
July 18, 2012 at 12:51 am (UTC 10) Link to this comment
I just read a WorkCover frequently asked questions doco. You can still have legal costs paid for by the insurer as it has not yet been decided what date this right will be taken from us. If I were in the middle of a Commutation offer I would be speaking to my solicitors as soon as possible to see about having them hurry it up.
As far as I can see the work capacity tests have not yet begun and will not until WorkCover organizes it all with the insurers and assessors. As soon as this happens it may take up to a year before people have such an assessment.
The work capacity assessments are by far the worst of the changes in my opinion as you will be left entirely in the hands of the assessors without the legal right to challenge unless you go to the Supreme Court.
The steps are 1. A work capacity test. You may or may not get someone who is fair, honest and competent so I really urge you to have all medical records stating what your qualified doctors say you cannot do. Have a support person and have them help you record anything you are not happy with during the assessment. If you are not happy or feel bullied make a written complaint immediately to WorkCover Provider Services manager and send a copy to the insurer. Also ring your case manager if you fell ill treated in any way. If you make complaints early you will have evidence if you want to dispute the findings of the work capacity tests.
2. If you do think you need to dispute the work capacity tests then you are allowed no legal representation whether you pay or not and you cannot go to the Worker Comp Commission as they cannot deal with matters relating to these tests so you are basically on your own. The best thing to do is to see your treating doctor to see if they agree with the work capacity assessment. If they don’t agree then see if they will write you a report giving medical reasons only. You then need to ask for a review by the insurer. You will probably get a sheet to fill in but don’t forget you can include attached pages and include every medical report and certificate that supports your case. If the assessor you see does not have the medical qualifications to override your own doctor then also include this as part of your evidence and make a complaint to the insurer and to WorkCover. If work they suggest is not within your education or qualifications or is unsuitable for your age put his in your argument. If it is likely to make your injury worse get more medical evidence from treating specialists. As far as I know you do not have to accept deeming work so don’t forget to dispute that. If you can return to work you want to be suited to the work so you can actually do it and be happy about being at work.
3. If you are not happy with the insurers review then you can go to WorkCover for their opinion so have copies of all your evidence and any new medical reports. You need to be very aware of anything the insurer does wrong. If there are rules for the way the process is carried out and they do not follow the rules this is the only ground you have to go to a higher WorkCover independent Authority.
4. You can go to the Independent WorkCover Authority if the insurer or WorkCover or assessor have not followed procedures so people will need to keep an eye on the WorkCover website for Guides to Work Capacity Assessments to see what procedure is meant to be followed.
5, This is the last way of disputing the assessment but it is too hard for most people- the Supreme Court! and you have to pay your own costs so how realistic is that for most injured workers!!
The work capacity assessments are the scariest for me as past experiences tell me they will not all be competent assessors and somehow I don’t see too many insurers agreeing with you against the assessor. The best thing to do is put a complaint to WorkCover if you think the assessor did the wrong thing by you and tell your case manager as well.
Shane needs to contact WorkCover claims assistance to find out if the insurer can delay the commutation this way as they have already made you an offer. If it was the insurer who sent you for the assessment to get the 20% it might be worth asking your own solicitor to send you for another one to see if you are 21% or over.
After you speak to WorkCover yourself you might have more information. Remember your solicitor is still paid from your claim at the moment until the date is gazetted by the government.
There are no time limits for benefits for people 21% or more whether you work part time or not at all but you will have to undergo work capacity tests every two years. If you are assessed as being able to work part time you need to ask the insurer about getting rehab to help with finding a job, retraining etc. There are some benefits for employers who employ injured workers so ask the insurer about these.
Emergency workers don’t have to have work capacity tests and can still take insurance issues to the Commission without having to pay themselves so this is something to write to the politicians about!! All injured workers are disabled so all injured workers should be able to be legally represented equally.
The above opinions are mine as I am not a solicitor so it is best to ask your solicitor while you still can.