COMPENSATION UPDATE – WINTER 2023
Published on June 27, 2023
| Centrelink - Preclusion/Refund | $1,159.00 p/w |
| Civil Liability Act – Max 1/10/22 | $705,000 |
| (15% most extreme case threshold) | |
| Wages limit – CLA 18/11/22 | $4,172.10 p/w |
| Motor Accidents - Max 1/10/22 | $605,000 |
| 11% WPI threshold - AMA4) | |
| Wages limit- MAC Act | $5,552 p/w |
| - 1/12/17 MAI Act | $4,476 p/w |
| Care - Gratuitous (6 hours/6 months) | $34.09 p/h |
| Travel Expenses (01/03/2023) | $0.58km |
WORKERS COMPENSATION – WEEKLY PAYMENTS INJURIES PRE 2012 RATES – EXEMPT WORKERS 1 OCTOBER 2022
Firefighters, Paramedics and Police
| Max weekly benefit - | $2,395.30 p/w |
| First 26 weeks’ incapacity - Base Rate Only | |
| After 26 weeks | |
| - No Dependants | $563.40 p/w |
| - Dependant spouse | $711.90 p/w |
| - Dependant spouse/2 kids | $949.30 p/w |
| Coal Miners (working in or about coal mines) separate rates. | |
EXISTING RECIPIENT OF WEEKLY PAYMENTS – 2012 Act
| Transitional amount | $1,180.50 p/w (1/04/23) |
| No current work capacity | $1,180.50 x 80% = $944.48 |
| Work capacity (post 130 weeks’ – unless > 20% WPI): | |
| $944.48 - earnings = $ x benefit. | |
All existing Claimants will now have been assessed for maximum of 5 years weekly benefits and must have greater than 20% whole person impairment and also be totally unfit for all work or working minimum 15 hours per week to continue to receive weekly benefits.
INJURIES FROM 1 OCTOBER, 2012 Max $2,341.70 (1/10/22)
– 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 $955 p/w (1/04/23)
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 Motor Accident Claims Changes
In November 2022, the NSW Government passed legislation making a number of changes to the motor accident scheme. Those changes include:
• Removing the term ‘minor injury’ and replacing it with a new term; ‘threshold injury.’ Fault base claims available if not a threshold injury.
• Statutory benefits are now available, regardless of fault or threshold injury, for up to 52 weeks (from previous 26 weeks).
• If the claimant is partially at fault (but not over 61% at fault), weekly benefits will only be reduced for contributory negligence after 52 weeks (from previous 26 weeks).
• If a claim for statutory benefits is not made within 28 days of the accident, weekly benefits may now be backdated to the date of the accident.
• Claimant’s who are not able to identify the vehicle at fault in a claim for statutory benefits must now conduct, and prove that they have conducted due search and enquiry into the identity of the
vehicle at fault.
• Claimant’s are no longer required to wait 20 months to make a fault based claim. And two years to settle a fault based claim.
• The three year limitation period to commence proceedings in the Personal Injury Commission has been removed.
DEATH BENEFITS (2015 Workers Compensation Act)
| Death claim: lump sum (1/04/23) | $891,100 |
| Payment: dependant child | $159.50 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 52 weeks. Thereafter an injured person only entitled to continuing benefits if their injury is not a threshold injury 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.
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 threshold injury.
Restricted to wage loss recovery.
Compensation for impairment/pain and suffering if over 10% WPI.
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.
Important Decision for Practitioner’s assisting workers
The Court of Appeal High Court confirms that the principle of Anshun estoppel applies to Statutory Workers Compensation Claims. An Anshun estoppel will arise if it appears that a matter relied upon by a party in subsequent proceedings, was so relevant to the first proceedings that it would have been unreasonable not to rely on it in those first proceedings. In this case, an Anshun Estoppel defence was successful where in the first (unsuccessful) proceedings the relevant injury was described as an ‘asthma attack’ and in the second proceedings as ‘cardio-pulmonary arrest’. The proceedings were therefore struck out.
Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190