COMPENSATION UPDATE – WINTER 2022
Published on July 26, 2022
| Centrelink - Preclusion/Refund | $1,082.60 p/w |
| Civil Liability Act – Max 1/10/21 (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) | $33.54 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 - | $2,318.10 p/w |
| First 26 weeks’ incapacity - Base Rate Only | |
| After 26 weeks | |
| - No Dependants | $545.20 p/w |
| - Dependant spouse | $688.90 p/w |
| - Dependant spouse/ 2 kids | $918.60 p/w |
| Coal Miners (working in or about coal mines) separate rates | |
EXISTING RECIPIENT OF WEEKLY PAYMENTS – 2012 Act
| Transitional amount | $1,142.50 p/w (1/04/22) |
| No current work capacity | $1,142.50 x 80% = $914 |
| Work capacity (post 130 weeks’ – unless > 20% WPI): | |
| $914 - earnings = $ x benefit. | |
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 $887 p/w (1/04/22)
WORKERS COMPENSATION – Making a claim and liability decisions
Following an injury, workers should obtain a Workers Compensation Certificate from their doctor, complete a 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.
Recent Changes following The Motor Accidents and Workers Compensation Legislation Amendment Bill 2021
In June 2022, the NSW Government passed legislation which makes a number of amendments to the motor accident and workers compensation schemes. Some of those amendments are as follows:-
• removal of some of the discrepancies between volunteer and paid workers, specifically volunteer firefighters, SES volunteers, surf life savers, marine rescue and volunteer rescue association workers.
• Children of people killed in workplace accidents will be entitled to additional compensation to cover costs associated with the NSW Trustee and Guardian managing their compensation until they turn 18.
• changes to the CTP scheme to ensure that people injured in motor vehicle accidents have their benefits fairly assessed and calculated.
RECENT CASES
The High Court, following an Appeal from the NSW Court of Appeal has held that whilst campdrafting constitutes a dangerous recreational activity, the harm that occurred in this case was not from the materialisation of an obvious risk. The decision also provides a guide for assessing the risk under section 5 of the CLA. The result being a Judgment in Ms Tapp’s favour in the sum of $6,750,000 plus costs.
Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd
DEATH BENEFITS (2015 WC ACT)
Death claim: lump sum (1/04/22) $862,350
Payment: dependant child $154.40 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
Artificial Aids – Lifelong coverage
Hearing aids replaced each 5 years.
Secondary Surgery for all Claimants within 2 years.
RETURN TO WORK ASSISTANCE
$1,000 Education/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 80 essential, 3 months + 4 working days notice.
Internal Review (30 days). Payments to continue.
Jurisdiction restored to Personal 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 allowed to make one further claim after 19/6/12 for section 66 benefit only.
Maximum of $665,260 (Injuries from 5/8/15)
Current Rates 01/07/22
11% ($25,900) threshold – All bodily injuries
15% ($39,420) threshold – Psychological injury
21% ($59,700) HIGH NEEDS WORKER
31% ($95,720) 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).
NEW MOTOR ACCIDENT INJURIES ACT – 1 DECEMBER 2017
Everyone injured in motor vehicle accidents (regardless of fault) has 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 has access to the same defined benefits as innocent victims for first 26 weeks. Thereafter an injured person only 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 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 Lifetime Care and Support Scheme- 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.
Liability for mental harm to an employee
The High Court, following an appeal from Victoria Court of Appeal, confirms that an employer’s failure to take reasonable measures in response to obvious signs of psychiatric injury had caused an aggravation and exacerbation of a psychiatric injury. The case provides a helpful analysis for lawyers in considering the duty of an employer to safeguard against psychological harm.
Kozarov v Victoria [2022] HCA 12