Picture the scene. You’ve been working hard for years, putting the hours in to earn a living. But then a freak accident or a bout of illness renders you unable to work. Facing a loss of income, what can you do? Workers’ compensation may be the answer.
Workers’ compensation is a form of insurance payment to employees if they are injured at work or become sick due to their work.
Employers in each state or territory in Australia are obliged to take out workers’ compensation to cover themselves and their employees. If an employer is uninsured, they can be fined for non-compliance and they can have their names published publicly (name and shame approach). Put another way, whether or not an employer holds an insurance policy at the time of injury is neither here nor there as far as you, the worker, is concerned.
So, if you’re currently injured or have contracted an illness due to an incident at work, you could qualify for payments to cover your wages (whilst you’re not fit for work) and/or payments to cover medical expenses and rehabilitation.
It’s important to note, that all businesses that employ or hire workers on full-time, part-time or casual contracts, under oral or written contracts or apprenticeships, must have workers’ compensation insurance that covers all workers. There are no exceptions.
If, having read this far, you believe that you qualify for workers’ compensation, read on to find out more about applying for workers compensation in Western Australia.
The context
Workers’ compensation is not the same across the whole of Australia. Workers’ compensation is governed by individual states and territories, so where you live will determine how the process works for you. In this article, we’re looking at how workers compensation works in Western Australia.
In Western Australia the workers compensation scheme is administered by a body called WorkCover WA. In this state, insurers privately underwrite the scheme. The scheme is underpinned by the Safe Work Australia Act 2008.
Making a claim
The first thing you should be aware of is the underlying principle upon which the Western Australian workers’ compensation and injury management scheme is based – ‘no fault’. This means that if you fall ill or suffer an injury, you don’t have to establish that your employer was at fault or negligent. In other words, if you are a worker and have suffered an injury or developed a disease at work (and require medical treatment or time off work as a result), then you are entitled to claim for compensation.
It’s also important to note that a claim can also be made in the event of an injury such as noise induced hearing loss or in the event of a fatality.
With that established, you’ll need to see if you fit the definition of a worker under the Workers’ Compensation and Injury Management Act 1981.
So, what is the definition of a worker? WorkCover WA define a worker as follows:
“The legal definition of a worker includes full-time, part-time, casual, seasonal, piece and commission workers. Working directors, contractors and sub-contractors may also be defined as workers depending on their working arrangements. It is important to note that a volunteer generally does not fall under the definition of a worker.”
Take note of that last sentence. If you’re a volunteer, it’s unlikely that you’ll be able to make a successful claim to the Western Australian workers’ compensation and injury management scheme.
Caveat – The definition of a worker is twofold: the primary definition and the extended definition. For more information on definitions, please consult and independent legal expert.
I fit the definition of a worker. What next?
The next steps depend on the nature of your impairment. If you have injured yourself at work, then you should do the following things to make a claim:
- Seek first aid straight away and report your injury to your employer.
- See a doctor as soon as you can after the accident. When speaking to your doctor, ask them for a First Certificate of Capacity.
- Once you’ve seen your doctor, you will need to complete a Workers’ Compensation Claim Form. You can download that form here.
- You should then make copies of both the certificate and the claim form (make sure you keep these safe in your records). Give the original documents to your employer.
- Your employer will then need to complete their section on the claim form and lodge both documents with their insurer. (They have to do this within 5 days. If they don’t, they can face penalties).
The decision
Once you and your employer have taken the actions above, the insurer will then notify you of their decision within 14 days. There are three potential responses the insurer will come back with:
Accepted – Your claim has been successful. You will receive weekly compensation payments (if you have an injury preventing you from working). You’ll also receive compensation for any reasonable expenses.
Disputed – The insurer may dispute your claim. If this happens, you will not receive any compensation, and the insurer will tell you why they reached this decision. However, if you disagree with the insurer’s decision, you can ask them to re-assess their decision. If you are still unsatisfied following this, you may lodge an application with the Workers’ Compensation Conciliation Service which seeks to resolve workers’ compensation disputes by agreement, with the assistance of an independent and impartial Conciliation Officer.
Pended – The insurer may decide that they need further information regarding your claim. In which case, they will put your claim on hold. The insurer then has 10 days to investigate and make a decision on your claim. If, after 10 days, the insurer has not come to a decision, then your claim will be deemed to be in dispute. At this stage, you can then approach the insurer again and request a decision be made. If your claim remains unresolved following this, you should lodge an application with the Workers’ Compensation Conciliation Service.
Anything else?
Yes. Either before or after your claim has been made, your employer or their insurer may ask you to attend a consultation with a medical practitioner.
It’s important that you attend this. If you don’t, it can impact your entitlement to workers’ compensation.
However, there are limits on when and how often you have to attend a medical consultation. For example, you cannot be compelled to attend a medical consultation in the following instances:
- Within 1 month from the date of a First Certificate of Capacity which states a further appointment has been made within 14 days.
- At unreasonable times of the day.
- With more than three medical practitioners who are specialists in the same fields of medicine.
- More than once every two weeks.
In addition to the above points, your employer cannot insist on being present at your medical consultation.
What about returning to work?
When your doctor is completing your Certificate of Capacity they will either indicate that you have ‘total capacity to return to work’, in which case you’ll be able to return to your previously held position once you’ve recovered, or they may indicate that you have only partial capacity to return to work. In this latter case, your employer will need to talk to you about a Return to Work Program. In extreme circumstances you may be issued with a “no capacity for work”, in which case you are unfortunately not recommended to return to your employer.
What exactly is a Return to Work Program?
As the section above describes, your employer will need to establish a Return To Work Program for you if your doctor indicates on your First or Progress Certificate of Capacity that you are:
- Partially fit to return to work in your usual job.
OR
- Totally or partially fit to return to an alternative job.
When your employer sets up a Return to Work Program for you, they must do so in the following way:
- They must provide the Return to Work Program for you in writing.
- It should include a description of the goal for the Return to Work Program.
- It should include the actions to be taken to enable you to return to work (as well as who is to take those actions).
- A signed statement as to whether you agree to the content of the program.
Your employer must allow you to provide input into your Return to Work Program. They cannot create one without your participation.
However, you also have a responsibility to take an active role in your Return to Work Program once you have agreed to it. If you don’t participate then your employer will be entitled to lodge an application with the Workers’ Compensation Conciliation Service for an order to reduce or stop your weekly payments.
What if I have suffered a permanent impairment?
If you have suffered an injury which has left you with a permanent impairment or incapacity for work, you may be entitled to a lump sum payment to finalise your workers’ compensation claim.
How these types of claims are settled depends on whether the settlement relates to a statutory compensation claim or a common law action. In order to access certain benefits or settlements, or pursue common law damages, you may have to undergo an impairment assessment.
It’s very important that you seek appropriate independent legal advice before choosing which type of action to pursue.
What does an impairment assessment involve?
An impairment assessment will involve an examination by a medical professional to assess what degree of permanent impairment or permanent whole person impairment (WPI) you are suffering from.
As outlined above, impairment assessments are usually required when an individual is seeking to; make a claim for damages at common law, for exceptional circumstances medical payments, or to access a Schedule 2 payment (a lump sum entitlement for permanent impairment).
How do I get an assessment?
Your employer’s insurer may request that you undergo an impairment assessment. If this is the case, they will arrange for you to be reviewed by an approved medical specialist (AMS). However, you may also arrange an assessment with an AMS of your choice. Here’s how to do that:
- Take a look at the register of approved medical specialists.
- Select one of the AMS’ from the list. It is a good idea to check their availability at this stage and what their experience is in conducting reviews of your particular impairment.
- You’ll then need to formally request an assessment by completing the Form AMS 1: Request for Assessment by Approved Medical Specialist of a Workers’ Degree of Permanent Impairment. You can access this form here.
- Once you’ve completed this form, you then need to provide it to the AMS (as well as any other information they request).
- Having done that, you’ll then attend the AMS at the time, date and location as agreed with them.
- Following this assessment, you will receive a written report from the AMS as well as a certificate of assessment (this will be Form AMS 7 and 8 if your condition has not stabilised, and/or Form AMS 5 and 6 if your condition has stabilised).
What does ‘condition not stabilised’ mean?
Sometimes the nature of an impairment or injury will vary over time.
This means that it has not ‘stabilised’ into a consistent form of impairment. If the AMS deems that your condition has not stabilised, it means they are unable to undertake the standard permanent impairment evaluation. Instead, you may be able to obtain a special evaluation. This can happen if 18 months have passed since you made the compensation claim on your employer.
So, if the AMS finds that your condition has not stabilised to the extent required for an evaluation of your degree of permanent impairment, they are required to give both you and your employer a written report and certificate with reasons justifying their findings.
Can I pursue a common law claim?
If your injury or illness has resulted in a permanent whole person impairment of at least 15% or more, you may be eligible to pursue a common law claim against your employer through the court system.
However, it is strongly recommended that you seek adequate independent legal advice before choosing your course of action.
Who pays for the AMS?
Who pays for the approved medical specialist depends on the type of claim you are making.
For common law access – if liability for your workers’ compensation claim has been accepted – you can claim back the cost of the first assessment from the insurer (this includes any attempt at an assessment that results in a finding that your condition has not stabilised).
For all other entitlements, it is the responsibility of the person requesting the assessment to pay.
What happens if there is a dispute?
Sometimes, either your employer or their insurer may dispute your level of impairment (as assessed by an AMS). If this happens, you may be able to lodge an application to resolve the dispute with the Workers’ Compensation Conciliation Service.
I think I may have an industrial disease. Can I claim workers’ compensation?
Firstly, if you believe you are suffering from an industrial disease you should inform your employer and see a medical practitioner immediately.
Specified industrial diseases are listed in Schedule 3 of the Workers’ Compensation and Injury Management Act 1981.
If, having spoken to your medical practitioner, it is found that you are suffering from an industrial disease, your employer has an obligation to inform WorkCover WA within seven days.
Following this, you should make a claim for workers’ compensation.
Asbestos related diseases
If you have been exposed to asbestos during the course of your work and have been diagnosed with the following industrial diseases; Pneumoconiosis, Mesothelioma, Lung Cancer, or Diffuse Pleural Fibrosis, you are able to lodge a claim for compensation.
Once you have lodged a claim for compensation, you will be required to be examined by the Industrial Diseases Medical Panel (this panel is made up of physicians who specialise in diseases of the chest or occupational disease). Given the complex nature of asbestos related workers’ compensation claims it is highly recommended that you seek appropriate independent legal advice.
Time to make a claim?
Do you need to make a claim for workers’ compensation? If you believe you have a case, then let Accident Claims Lawyers lend you a helping hand. Our workers’ compensation lawyers in WA treat every workers’ compensation claim as unique and can help you with legal advice whether you’ve just been injured, or have been receiving WorkCover payments and run into problems.
Call us now on (08) 6118 7552 or use our contact form.
