COMPENSATION UPDATE – WINTER 2021
Published on August 12, 2021
| Centrelink - Preclusion/Refund | $1,057.70 p/w |
| Civil Liability Act – Max 1/10/20 (15% most extreme case threshold) | $693,500 |
| Motor Accidents - Max 1/10/21 11% WPI threshold - AMA IV) | $595,000 |
| Wages limit- MAC Act | $5,461 p/w |
| -1/12/17 MAI Act | $4,403 p/w |
| Care - Gratuitous (6 hours/6 months) | $33.31 p/h |
| Travel Expenses (1/10/05) | $0.55km |
WORKERS COMPENSATION – WEEKLY PAYMENTS INJURIES PRE 2012 RATES – EXEMPT WORKERS 1 OCTOBER 2021
Firefighters, Paramedics and Police
| Max weekly benefit - | $2,282.90 p/w |
| First 26 weeks' incapacity - Base Rate Only | |
| After 26 weeks | |
| - No Dependants | $536.90 p/w |
| - Dependant Spouse | $678.40 p/w |
| - Dependant spouse/ 2 kids | $904.60 p/w |
| Coal Miners (working in or about coal mines) separate rates | |
EXISTING RECIPIENT OF WEEKLY PAYMENTS – 2012 Act
| Transitional amount | $1,125.20 p/w (1/10/21) |
| No current work capacity | $1,125.20 x 80% = $900.16 |
| Work capacity (post 130 weeks' - unless > 20% WPI): | |
| $900.16 - earnings = $ x benefit. | |
All existing Claimants will now have been assessed for maximum of 5 years weekly benefits and must have greater than 20% whole person impairment and also be totally unfit for all work or working minimum 15 hours per week to continue to receive weekly benefits.
INJURIES FROM 1 OCTOBER, 2012 Max $2,282.90 (1/10/21)
-First 13 weeks’ – 95% of PIAWE
-Working (15 hours) – 95% less actual earnings.
Weekly compensation paid for more than 130 weeks’ then must be working at least 15 hours [unless >20% WPI (52 weeks’ notice) or no benefits at all – will apply to most injured workers.]
Insurer must otherwise be “satisfied” worker will not be able to increase capacity “indefinitely” – difficult/impossible test.
New definition to simplify calculation of pre injury earnings (PIAWE)
Over 30% Whole Person Impairment (WPI)
Highest Needs Worker $ 871p/w (1/10/21)
DEATH BENEFITS (2015 WC ACT)
| Death claim: lump sum (1/04/21) | $849,300 |
| Payment: dependant child | $152 p/w |
| Funeral expenses (5/8/15) | $15,000 |
TREATMENT EXPENSES
Pre-approval necessary from Insurer with some limited exceptions
– GP/Specialist/X-ray/Chemist or by order of the Commission.
All treatment coverage stops 2 years after claim or weekly entitlement ceases if less than 11% WPI.
11-20% WPI – 5 years coverage
Over 20% WPI – Lifetime coverage restored
Artificial Aids – Lifelong coverage restored – (4/12/15).
Hearing aids replaced each 5 years.
Secondary Surgery for all Claimants within 2 years.
RETURN TO WORK ASSISTANCE
$1000 Educational/Retraining assistance – up to $8,000 if over 20% WPI and off work more than 78 weeks’
WORK CAPACITY ASSESSMENT/DECISIONS
Strict Compliance with Section 54 essential, 3 months + 4 working days’ notice.
Internal Review (30 days). Payments to continue.
Jurisdiction restored to Workers Compensation Commission to determine work capacity disputes made after 1/1/19
Weekly Compensation – 12 months after retirement age – Born after 1/1/57 – Pension age 67.
WHOLE PERSON IMPAIRMENT
One claim rule applies to ALL injuries after 19/6/12 – 11% threshold – no pain & suffering payment. Claim made for WPI before 19/6/12 will now be allowed to make one further claim after 19/6/12 for section 66 benefit only.
Maximum of $631,370 (Injuries from 5/8/15)
CURRENT RATES 01/07/2021
11% ($24,810) threshold – All bodily injuries
15% ($37,770) threshold – Psychological injury
21% ($57,210) HIGH NEEDS WORKER
31% ($91,700) HIGHEST NEEDS WORKER
Lower rates for Exempt Workers
WORK JOURNEY PROTECTION
Check coverage with union and income protection/TPD coverage as part of Superannuation. Journeys to and from work only covered if there is a “real and substantial connection with employment” but new Motor Accident Injuries Act to be considered from 1/12/17 (no fault).
WORKERS COMPENSATION – Making a claim and liability decisions
Following an injury, workers should obtain a Workers Compensation Certificate from their doctor, a complete Worker’s Injury Claim Form and provide copies to their employer and the insurer as soon as possible. Always keep copies.
The insurer must decide as to whether to accept the claim or not within 21 days (Sections 274 & 279 WIM Act).
If a worker is entitled to weekly payments of compensation, the insurer must commence provisional payments within seven days unless the insurer has a “reasonable excuse.” A reasonable excuse does not include investigating the claim, and therefore the insurer must commence provisional payments while they investigate the claim.
If the insurer does not decide within 21 days, it is important for workers to contact us for further advice.
CHANGES TO SUPERANNUATION FROM 1 NOVEMBER 2021
From 1 November 2021, workers will be tied to a single superannuation fund in an aim by the Federal Government to tackle the issue of multiple super accounts eroding the value of superannuation balances because of fees.
These changes only apply to workers who commence new employment after 1 November 2021 and mean their existing super account will follow them when they change employer. In the event of multiple accounts, the ATO will determine which account is the “stapled” fund.
These changes could impact those workers who work in potentially hazardous employment, leaving them without suitable insurance. Workers should make enquiries with their super fund to determine that they have appropriate levels of insurance, and their current super fund is the best for their own circumstances.
RECENT CASES
The NSW Court of Appeal has determined that a worker, who had previously appealed to the Medical Appeal Panel following an assessment of an Approved Medical Specialist can seek a reconsideration of the Medical Appeal Panel Decision and any Medical Assessment Certificate issued, where there is a deterioration in the worker’s condition. This determination is likely to have a significant impact for injured workers who have experienced a deterioration in their whole person impairment following an earlier Medical Appeal Panel decision where a new Medical Assessment Certificate was issued.
Sleiman v Gadalla Pty Ltd [2021] NSWCA 236
NEW MOTOR ACCIDENT INJURIES ACT – 1 DECEMBER 2017
Everyone injured in motor vehicle accidents (regardless of fault) will have access to reduced benefits including wages/treatment costs.
First 13 weeks – 95% pre accident earnings
14 – 78 weeks – 80% if no capacity and 85% less earnings.
After 78 weeks – 80% net loss of earning capacity (not taxable)
Treatment coverage limited and paid domestic assistance limited to 2 years (no family assistance payable).
Driver who causes injury will have access to the same defined benefits as innocent victims for first 26 weeks. Thereafter an injured person will only be entitled to continuing benefits if their injury is not minor and they are not the driver wholly or mostly (61% or more) at fault. Weekly benefits may be reduced for contributory negligence once assessed by insurer.
Procedure – Claim Form must be lodged within 28 days to receive defined benefits OR not paid till Form lodged – (3 month limit).
No benefits payable if entitled to workers compensation for accident – must lodge both claim forms immediately.
Limited fault based claims will be available only if not a minor injury.
Restricted to wage loss recovery.
Compensation for impairment/pain and suffering if over 10% WPI. 3 year time limit to lodge final claim and 20 month / 2 year time limits apply before finalisation of claim.
Treatment expenses continue to be covered by statutory scheme for maximum 5 years then transferred to LTCS – no damages payable.
BLAMELESS ACCIDENTS
Application should be considered in all motor accidents to put Insurer on notice as at least an alternative allegation to fault where Claimant’s injuries likely to exceed 10% WPI threshold.
Statutory benefits payable under 2017 Act.
Workers Compensation and COVID-19
Personal Injury Commission determined that the estate of an employee who travelled to New York and contracted COVID-19 and subsequently passed away was entitled to compensation under the Workers Compensation Act in NSW on the basis he contracted COVID-19 during his employment.
Sara v G & S Sara Pty Ltd [2021] NSWPIC 286