Your Guide to Workers Compensation Law in NSW
Employment law regarding workers’ rights and compensation legislation can be confusing, but as a worker, it’s important to know your rights. These rights include a safe working environment and compensation when injured due to work.
Most employees and employers in Australia are protected by a variety of national and state-level legislation and policies. For example, at the national level, there is the national workplace relations system which includes the Fair Work Act 2009, the National Employment Standards, registered agreements, and awards. At the state level, all states and territories in Australia have their own statutory worker’s compensation schemes.
What are Workers' Compensation Laws in NSW?
Workers’ compensation is a form of insurance and it is a legal requirement for every employer to have this insurance.
According to the Fair Work Ombudsman, this insurance is designed to provide financial support for workers who suffer an injury, illness, or disease as a result of work or working conditions. The purpose of compensation laws is to provide a safety net so injured workers can get access to flexible working arrangements if they are able to still work, access to medical treatment or rehabilitation (covers medical expenses), cover their wages in the form of weekly payments, and/or lump sum payments where an injury is considered permanent.
What Does the Workers Compensation Act 1987 Do?
The Workers Compensation Act achieves two things primarily:
- It establishes that an employer has liability for any injury sustained by one of their employees during the course of their employment.
- It seeks to ensure that injured workers receive appropriate compensation arising from the employers’ liability.
What is Section 66 in the Workers Compensation Act?
Section 66 of the WCA refers to the workers’ entitlement to compensation for permanent impairment.
A permanent impairment is defined as an injury which physically and/or mentally impairs a worker and there are evaluation guidelines used to determine the degree of permanent impairment.
Section 66 stipulates that a worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section.
The relevant threshold to claim permanent impairment lump sum compensation for psychological injury is a minimum of 15%.
What are my Workers' Rights & Responsibilities in the Workplace?
Workers have both rights and responsibilities in the workplace, whether they are temporary working visa holders, permanent residents, or Australian citizens. Workers are protected by law to ensure their safety at work and enable them to address working conditions without impacting their employment relationship.
According to SafeWork NSW, you have the right:
- to be shown how to work safely
- to access appropriate safety equipment
- to speak up about work conditions or say no to unsafe work
- to be consulted about safety in the workplace
- to be informed about and access workers’ compensation
- to a fair and just workplace
- to fair pay and conditions
Workers also have responsibilities at work, including workplace health and safety obligations and responsibilities, including:
- an employee is responsible for taking reasonable care of themselves at work.
- an employee should not do anything that would affect the health and safety of others at work.
- employees are responsible for following any reasonable health and safety instructions from their employer.
To ensure you are working in safe conditions and are fulfilling your responsibilities as a worker, you should ask how to safely perform tasks, ask about safety equipment and procedures, follow instructions regarding task execution and work safety, and report any unsafe and unhealthy conditions, situations or injuries to your immediate supervisor.
Is Workers' Compensation Mandatory in Australia?
The short answer is yes. All employers, in every state and territory of Australia, are required to provide Workers’ Compensation, a compulsory statutory form of insurance.
In NSW, benefits available to injured employees under workers’ compensation are determined by the Workers Compensation Act NSW 1987 and the Workplace Injury Management and Workers Compensation Act NSW 1998. This legislation stipulates the rights and responsibilities of both the employee and employer to ensure injured workers receive their benefits and assistance to recover and return to work safely.
Workers' Compensation Insurance
What are the Objectives of Workers' Compensation?
The primary objective is to enable injured employees to receive appropriate compensation, without the need for litigation, and to support employees to return to work. As part of this return-to-work plan, the compensation supports injured employees by replacing income and covering the cost of accessing rehabilitation services or medical treatments.
What Does Workers' Compensation Insurance Cover?
There are various kinds of injuries that could form the basis for a workers’ compensation case in NSW if they occur as a result of work. WCI covers a range of expenses for work-related injuries, including medical and rehabilitation care, loss of income, compensation for permanent injuries, costs for retraining, and in the worst-case scenario, benefits to survivors of workers killed on the job.
Injuries covered by WCI include:
- Back Related Injuries, including spinal and slipped disc injuries
- Arm and leg injuries, including hands/fingers and feet/toes
- Head, neck, or eye injuries
- Brain injuries
- Repetitive strain injuries
- Construction injuries
- Death dependency
- Cancer conditions
- Heart conditions
- Severe stress
- Soft tissue injuries
- Chemical and asbestos exposure
- Industrial asthma and other lung conditions
- Industrial deafness
- Infectious conditions
- Psychological conditions
- Diseases caused by work
- Diseases or pre-existing conditions made worse by work
- Injuries suffered whilst traveling for work
- Injuries suffered while receiving medical treatment for a separate work injury
What Does Workers Compensation Not Cover?
While workers’ comp insurance does cover most, but not all, work-related injuries. For example, it does not usually cover the following:
- Incidents resulting from an act of God
- Common, one-time illnesses, such as influenza or headaches, or contracting ordinary diseases of life
- Condition(s) that existed before an employee was hired or began performing a particular job
- Employee negligence that produces or causes an injury
- Employees who suffer a heart attack or stroke injury
- Injuries caused by a worker who starts a fight
- Injuries suffered during participation in an off-duty recreational activity
Employer Obligations & Workers' Compensation
According to SIRA (State Insurance Regulatory Authority), under workers’ compensation legislation in NSW, every employer is required to fulfill certain responsibilities to inform employees and keep them safe.
These responsibilities include providing information about how a worker can notify employers about an injury and make a claim for workers’ compensation. For example, placing a ‘If you get injured at work’ poster within the workplace (this could be displayed physically in the workplace or electronically where employees can access it). It also includes having a Return-to-Work program for your workplace.
If a worker is injured at work, an employer must:
- ensure the employee is provided with first aid and appropriate care.
- notify their relevant workers compensation insurer of any injury or illness within 48 hours.
- notify SafeWork NSW immediately on 13 10 50 if the injury is serious.
- Record any work-related injury or illness in their register of injuries.
- Take steps to help their workers recover at work. This includes communicating with the injured worker, their doctor, and their insurer.
Depending on the type of employer you are working for, there may be other requirements they have to fulfil.
Making a Workers Compensation Claim
When making a compensation claim, there is a process to follow to ensure you take all the right steps and get the information and documentation you need.
How to Make a Compensation Claim
Suffering from a workplace injury is distressing for most people and going through the process of making a compensation claim can often add to a person’s stress.
There are several key steps to submitting a workers’ compensation claim:
Step 1. Report your injury to your employer
Every employer is required to have an injury book or accident register that you will need to fill in – this is a legal requirement. If there is not injury book or register, you can give your employer written details of your injury and make sure you keep a copy for yourself. You will need to notify your employer of the injury as soon as you can after becoming aware of it (within 30 days) or you may risk having your claim rejected.
Step 2. Visit your doctor
If you’ve suffered a work-related illness or injury, you will need to visit your doctor for diagnosis and/or treatment. It’s important to explain everything that happened and where it happened. They will provide you with a certificate stating you have a work-related injury detailing the injury and your capacity for work – this is called a ‘NSW WorkCover Certificate of Capacity’. This certificate is very important, as you will need it for submitting your compensation claim.
Step 3. Request a workers’ compensation claim form
Your employer should give you this form when you report your injury. If you haven’t received this form, you can also get one from your doctor or from the workers’ compensation authority in your state or territory. In NSW that would be the State Insurance Regulatory Authority (SIRA).
Step 4. Complete and submit your claim form
Once you have completed the claim form, attach your Certificate of Capacity and submit your claim to your employer (keeping a copy of the completed form and certificate for your own records).
Types of Compensation
According to SIRA, the types of compensation covered under the insurance scheme includes (but are not limited to):
- Weekly payments
- Medical, hospital, and rehabilitation expenses
- Domestic assistance
- New employment assistance payments
- Education or training assistance payments
- Lump sum payments
- Payments in the event of death
Common Reasons for Workers Compensation Claims
In Australia, the most common types of personal injuries, as reported by Safe Work Australia, include:
- injury and musculoskeletal disorders (89% in 2017–18)
- diseases, including mental health conditions (7.5%)
- digestive system diseases (1.9%)
- nervous systems and sense organ diseases (1.0%)
To break that down further:
- 40% of claims were for traumatic joint/ligament and muscle/tendon injury
- 16% of claims were for wounds, lacerations, amputations, and internal organ damage
- 15% of claims were for musculoskeletal and connective tissue diseases
- 11% of claims were for fractures
- 7.5% of claims were for mental health conditions
How much can you claim through Workers' Compensation?
The amount you could potentially receive from a claim is dependent on a variety of factors, including your personal injury circumstances, the date of your injury, and where in Australia the injury took place. Each state and territory has its own scheme and regulatory authority that oversees it.
To ensure your claim has the best chance, you will need to have as much information and documentation as possible. At Burke Mead Lawyers, part of our job is to review these circumstances and documentation and provide you with realistic expectations throughout the life of your claim.
Limits on Making Workers Compensation Claims in NSW
There are strict time limits associated with making a workers’ compensation claim in NSW – you have up to six months to lodge your claim after the accident or becoming aware of the injury (there may be some circumstances in which this is extended). However, the sooner you can report it, the better, and we recommend getting legal advice from one of our experienced professionals as soon as possible.
Who pays the compensation for my work injury or disease?
Workers’ Compensation in NSW is paid by your employer’s insurance company and is a compulsory form of insurance for all employers in NSW.
To ensure you get the best outcome from your compensation claim, it’s important you seek legal advice PRIOR to accepting any lump-sum payment from an insurer.
The Managing Director of BurkeMead Lawyers, Emma Mead, is an Accredited Specialist in Personal Injury Law and an accredited mediator with LEADR (The Resolution Institute), which is an international organisation promoting mediation for conflict resolution.
Our team is based in Newcastle, NSW, but is available across the Hunter, Central Coast, and Sydney for your compensation claim and mediation needs. Speak to our team today to learn more about how BurkeMead Lawyers can help you.
To book a consultation or inquire about availability, please contact us on 02 4902 3800 or send us an enquiry.
About the Author
Emma Mead is an Accredited Specialist in Personal Injury Law, accredited by the Law Society of NSW. She is also a National Accreditor Mediator and has a Graduate Diploma in Family Dispute Resolution. She specialises in all personal injury and family law disputes, locally and across New South Wales.