You’ve been injured at work, what compensation are you entitled to?
If you have been injured in the workplace or during the course of your employment, you may be entitled to workers compensation to help you recover from your injury. An injured worker is generally entitled to three main benefits under the workers compensation scheme in New South Wales including but not limited to:
- Medical treatment expenses
- Weekly compensation payments
- A lump sum compensation for impairment
1 Weekly payments
Due to your injury, you may not be able to work at all, or you may be back at work part-time and/or on light duties, or perhaps you have some capacity to work, but your employer cannot offer suitable duties for you. You can be eligible to receive weekly payments for each of these situations.
2 Medical expenses
If you require some medical and related treatment services as a result of your injury that are deemed reasonably necessary, these expenses can also be paid by the insurer under your workers compensation claim.
3 A Lump sum payment
As a result of your workplace injury, if you suffered permanent impairment, you may be entitled to receive a lump sum payment as compensation in addition to your medical treatment expenses and weekly payments that may generally be available through the workers compensation system.
A lump sum compensation for permanent impairment is one of the three main entitlements that an injured worker can claim under the NSW workers compensation scheme. It is compensation for a work-related injury suffered by the worker which has led to a permanent loss of function or movement.
The lump sum compensation claim is separate to your medical expenses and weekly payments claim. Even if you are successful in your claim for lump sum compensation, you will still be able to receive weekly payments and medical expenses.
There are certain criteria which must be met in order to be eligible to receive a lump sum compensation including:
- Your injury must have reached Maximum Medical Improvement (MMI); and
- You must have a minimum level of permanent impairment. For physical injury claims, the minimum level is 11% Whole Person Impairment (WPI), and for those injuries that are psychological in nature, the threshold is 15% WPI.
Process for making a lump sum compensation claim
MMI
To pursue a claim for lump sum benefits, you need to be assessed by an accredited medico legal assessor. An assessor will not provide an impairment rating unless your injury has reached a level of MMI. Having reached MMI means that your condition has stabilised and is unlikely to change substantially in the next year with or without treatment.
Generally, this could take 10 – 12 months after the date of your injury. If you undergo any surgery or major treatment, it is another 12-month period following your surgery before you reach MMI in order to be assessed for your impairment. However, this is merely an estimate, and the stabilisation period is variable and subject to everyone’s circumstances. If you are unsure if you have reached MMI, speak with your treating doctor or specialist.
IRO Funded Free Legal Services
Once you have reached MMI, our legal team here at Alliance Compensation Lawyers can assist in investigating a lump sum claim for you. Don’t worry about any out-of-pocket legal expenses. We are IRO approved workers compensation lawyers and there are no legal costs payable by you in your workers compensation claim, as our costs are payable by the legal assistance scheme operated by the Independent Review Office (IRO). IRO is a body set up by the NSW government to fund the legal costs for injured workers who engage an approved lawyer much like Legal Aid.
To commence the process, we will apply on your behalf to IRO to approve funding for payment of our legal costs and disbursements, such as the cost of obtaining a medico-legal report from an assessor. Upon receipt of the funding approval, we request clinical notes and medical reports from your treating doctors and attend to arranging a medico-legal assessment appointment for you.
Medico-legal Report & WPI rating
At the appointment of the assessment, the assessor will examine you in order to provide a report setting out your impairment rating in percentages. The report will normally be available approximately 3-4 weeks after the date of your assessment.
Upon receiving the medico-legal report, if you are assessed as having 11% WPI or higher (for psychological injury, 15% WPI or greater), we will obtain your instructions and make a claim based on the impairment rating set out in the report. The amount of compensation you will receive depends on the impairment percentages, and of course, the higher the impairment percentage, the higher the lump sum compensation you will receive for your impairment. We will let you know how much we are claiming by sending you a letter of advice together with the report before we serve a claim on your behalf on the insurer.
Two months timeframe
Once the insurer has received our claim, they will have a period of two months to make a decision on the claim. The insurer may send you for a further medico-legal assessment that is arranged by them. In that case, the two months period will start from the date of appointment with their assessor.
Within that 2-months timeframe, the insurer must either accept liability and make a reasonable offer of settlement, or dispute liability.
Only once chance to do a lump sum compensation claim
Before you instruct your lawyers to seek permanent impairment compensation, you need to understand that you are only entitled to one lump sum compensation claim. There are exceptions for claims that were made prior to 19 June 2012 in which the worker may be entitled to make one further lump compensation claim if the worker’s condition has deteriorated. However, if the claim is made on or after 19 June 2012, the Workers Compensation Act allows injured workers to make only one claim for permanent impairment compensation in respect of the injury.
What this means is that once you have obtained an assessment of your WPI and settled your lump sum claim, you cannot return and try to claim an increase in your impairment even if your conditions deteriorates. Deterioration of an injury often occurs over time and an injured worker may require further surgery some years after the initial injury which will most likely increase the level of WPI.
Though it is difficult to decide when the optimum time is to seek the lump sum claim, it is important not to make the claim lightly unless you are satisfied that your injury is unlikely to deteriorate further and it is unlikely for you to have a further surgery.
The assessment of WPI rating is important because it not only affects how much lump sum compensation you will get for your permanent impairment, but it also affects your other entitlements to workers compensation.
For example, medical expenses are payable for a maximum of either two or five years (from the date you stop receiving weekly payments) unless you have a WPI rating of 21% or greater. If you exceed 21% WPI, this will entitle you to ongoing weekly compensation payment until your retirement age (subject to the insurer’s work capacity assessments every 2 years) and also payment of medical expense for life.
Further to the above, if your WPI rating is 15% or greater, you will also be permitted to pursue further compensation. If your impairment is determined at 15% WPI or higher, not only will you receive a lump sum compensation payment for your permanent impairment, you will also be entitled to pursue a Work Injury Damages (WID) claim, that is, a common law negligence claim against your employer. The WID claim will entitle you to seek a further lump sum payouts for your past and future economic loss, being past and future loss of wages and loss of superannuation, on top of your lump sum compensation that you have received for your permanent impairment.
Sometimes at Alliance Compensation Lawyers we receive enquiries from workers who have previously engaged other lawyers and have had their whole person impairment assessed without considering that they only have one opportunity to make a lump sum compensation claim.
We had a client who moved to our firm intending to pursue a lump sum compensation for his impairment. Having reviewed his complete files which we obtained from his previous solicitors, however, we noted that the client has already exhausted his ‘one claim’ for impairment lump sum compensation.
The client who was in his late 40’s injured his lower back at work in 2015. The previous solicitors had made a lump sum claim for this client in 2016 and following the claim was disputed by the insurer, they commenced proceedings in the Workers Compensation Commission. The matter was referred to an Approved Medical Specialist (AMS) who later issued a Medical Assessment Certificate (MAC) in 2017 assessing him as having 6% WPI. The client was not awarded any impairment compensation as his impairment rating was determined by the AMS as falling short of the required 11% WPI threshold.
The client’s condition has deteriorated later, and he underwent a spinal fusion surgery to his lower back in 2018 which apparently has increased his impairment significantly. The client would more than likely satisfy the 11% WPI threshold at the current stage.
However, unfortunately, his statutory rights were impacted by the level of WPI determined by the AMS in 2017, and he is now precluded from receiving any lump sum compensation for his lower back injury, even if he would have been able to reach 11% WPI now following the fusion surgery.
Therefore, it is crucial that you obtain proper legal advice to assist you going through the permanent impairment assessment procedure and the whole process of making a lump sum claim. At Alliance Compensation and Litigation Lawyers, we always discuss with our clients the ramifications of what will happen to their future entitlements to workers compensation before making a lump sum claim and strive to maximise each client’s claim.
Do you want to discuss a lump sum compensation claim? Talk to one of our experienced workers compensation lawyers at Alliance.
