Worker Benefits

> Benefits for injured workers
> Weekly benefits
> Permanent impairment
> Commutations
> Templates & References
 

Benefits for injured workers

An injured worker may be eligible for all or some of the following benefits: 

• Provisional liability payments;
• Medical or related treatment;
• Ambulance service;
• Hospital treatment;
• Occupational rehabilitation services;
• Permanent impairment (Section 66) and pain and suffering payments (Section 67);
• Repairs to artificial limbs, spectacles and other aids;
• Compensation for damage to clothing;
• Death benefits/funeral expenses;
• Weekly benefits for wage loss;
• Vocational re-education, vocational retraining, work aids and equipment and work trials;
• Second Injury Schemes e.g. JobCover;
• Common law;
• Commutations;
• Legal aid.

Weekly benefits

> Injured workers who are unfit to work
> Injured workers who have returned to work on suitable duties that pay less than their pre-injury
> Injured workers who are fit to return to suitable duties but there are no duties

There are differences in payments to workers, depending on their fitness to work.

Injured workers who are unfit to work

For the first 26 weeks that a worker is totally unfit for work (total incapacity), the workers compensation payments are at the award rate or enterprise agreement rate of pay.  Overtime, shiftwork, payments for special expenses and penalty rates are excluded.

Beyond 26 weeks of total incapacity the workers compensation payments are at a new rate, the statutory rate, which includes adjustments for a dependent spouse and/or children.  The statutory rate is adjusted in April and October each year to keep up with movements in wages.

Injured workers who have returned to work on suitable duties that earn less than their pre-injury

A worker who returns to work on partial duties may earn less than before the injury because, for example, they may be working part-time or the suitable duties are on a lower pay rate than their pre-injury job.

If the worker is earning less money, their total weekly "wage" will be made up of two parts.  The first part is paid by the employer for the value of the duties worked that week.  The second part is also paid by you, except that your insurer will reimburse you for this amount called make-up pay (or Section 40 benefits).

Make-up pay is the difference between the worker's normal gross weekly wages (before the injury), which includes overtime, shift work, payments for special expenses and penalty rates, and the actual weekly earnings after the injury (the value of the duties worked).  The amount of make-up pay is limited to the award rate for the first 26 weeks of partial fitness for work and to the statutory rate for any weeks of partial fitness for work beyond 26 weeks.

Injured workers who are fit to return to suitable duties but there are no duties

If there are no suitable duties, but the worker is involved in rehabilitation, retraining or job-seeking, then they may receive "Section 38" payments:

• For the first 26 weeks of partial fitness for work, the Section 38 payments cannot be more than the award rate of pay.
• For the next 26 weeks of partial fitness for work, the Section 38 payments cannot be more than 80% of the award wage.
• Section 38 payments stop after they have been paid for 52 weeks.

Permanent impairment

> Section 66 payment
> Section 67 payment
> Permanent impairment guidelines

If a worker has a permanent injury they may claim compensation for what is called a permanent impairment.  There are two types of claims for permanent impairment:

Section 66 payment

• is a lump sum of money for a permanent loss of the efficient use of a part of the body as a result of an injury at work.
• The lump sum compensation payable will depend on the date of injury, the part of the body affected, the assessed impairment, and the extent of any pre-existing injury, abnormality or condition.
• The degree of permanent impairment is assessed using WorkCover Guides for the Evaluation of Permanent Impairment.
• It can only be assessed once the worker's medical condition is stable, and unlikely to change much in the following 12 months with or without further treatment.
• The current maximum amount of Section 66 lump sum entitlements is $200,000.

Section 67 payment

• is a lump sum of money for pain and suffering resulting from permanent impairment.
• To be eligible for this payment the permanent impairment must be equal to or greater than 10% whole person impairment.
• The maximum amount of Section 67 lump sum entitlements is $50,000.

Permanent impairment guidelines

The WorkCover Guides for the Evaluation of Permanent Impairment use the idea of "whole person impairment" and follow 3 steps:

• an assessment of the percentage impairment of the body system involved, for example, lower limb, spine, respiratory system, psychiatric and psychological disorders, cardiovascular system, the skin;
• this percentage impairment of the body system is then converted to a percentage "whole person impairment";
• the amount of compensation is then calculated according to the formula in the Workers Compensation Act 1987.

If there is a dispute about the level of impairment then the Workers Compensation Commission may appoint an Approved Medical Specialist to assess the injured worker and issue a certificate of impairment.  This certificate will be binding and conclusive on the Commission and the Courts.

Commutations

Commutation is where an injured worker's entitlements to workers compensation benefits can be finalised and paid out as a lump sum of money.

Criteria for commutations:

• the injured worker must have sustained a permanent injury that is at least a 15% whole person impairment;
• the worker's entitlements to permanent impairment compensation (Section 66) and pain and suffering compensation (Section 67) have been paid;
• the worker must have a current entitlement to weekly benefits;
• more than two years must have passed since the worker's first claim for weekly compensation because of the injury;
• all opportunities for injury management and return to work for the injured worker have been fully exhausted;
• the worker has not had weekly payments of compensation discontinued under section 52A or reduced under section 38A;
• the worker has received independent legal advice;
• the insurance company and worker must agree;
• WorkCover must approve all commutations;
• all agreements must be registered with the Workers Compensation Commission.

Templates & References

WorkCover NSW Benefits Guide April 2004

WorkCover NSW Guides for the Evaluation of Permanent Impairment