If you were injured at the workplace in Western Australia, you may be entitled to workers compensation. The Worker’s Compensation and Injury Management Act 1981 is administered by WorkCover WA. WorkCover WA is also the dispute resolution authority for workers’ compensation in Western Australia.
WorkCover does not offer legal advice. If you are an employee, an employer, a medical practitioner, a return to work provider, a rehab provider or other related service providers, you can receive generic advice from WorkCover. If you are looking for further information relating to personalised legal advice about work-related injury compensation claims, a specialised workers compensation lawyer in Perth will often offer an obligation free consultation.
In this article, we will provide further information regarding the most commonly asked questions about the present injury management scheme and how to claim workover benefits and entitlements.
Table of Contents
- Can I claim WorkCover?
- What qualifies as a workers comp claim?
- How do I file a WorkCover claim?
- What does WorkCover cover?
- What does workers compensation not cover?
- How long can a workers compensation claim last?
- How are workers comp claims paid?
- What is the average settlement for workers comp?
- What are the steps in the worker’s compensation claim process?
- How is workers compensation calculated?
- How much does workers comp pay in a settlement?
- Are volunteers covered by insurance?
Can I claim WorkCover?
If you are injured at work or as a result of your employment, you may be able to claim WorkCover compensation. This applies to work-related personal injury, disease, and psychological injury caused by your employment. You don’t need your employer’s approval to make a claim for WorkCover benefits. This is because your worker’s compensation payment is a form of insurance payment made by your employer’s workers compensation insurer. Additionally, you do not need to prove negligence. This means, even you are at fault for causing the work-related injury, you can still claim workover benefits.
What qualifies as a workers comp claim?
Workers comp claim is a short way of saying worker’s compensation claim. When people say they are claiming workover benefits, they are essentially claiming workers comp. To qualify a workers comp claim in WA, you need to show you have suffered a personal injury by accident, disease or recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree. The injury or disease needs to arise from your work or from your employer’s instructions.
Pursuant to the Worker’s Compensation and Injury Management Act 1981 you will also need to meet the definition of “worker” which includes employees and limited coverage for contractors.
Many construction accidents and farm accidents involve contractors. Contractors eligibility for WorkCover claim in WA is complex. Foyle Legal has extensive experience in workers comp for construction workers as well as WorkCover claim for farm accidents. We can help to determine your eligibility for WorkCover benefits and entitlements.
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How do I file a WorkCover claim?
To file a WorkCover claim, you need to follow the 3 simple steps:
- Seek medical treatment and complete the First Certificate of Capacity
- Complete your Workers Compensation Claim Form 2B.
- Submit your Workers Compensation Claim Form 2B and First Certificate of Capacity to your employer.
Most employers should have a copy of the worker’s compensation claim form onsite. If not, you can easily download it from the WorkCover WA website. Once you file a WorkCover Claim form, your employer is obligated to submit the claim to their insurance company. It is your employer’s insurance company that decides whether your claim is accepted, rejected or pended. Your employer can not reject, accept or pend your worker’s comp claim unless they are self-insured (very limited employers are self-insured, usually large business and not small business). If your employer illegally refuses your right to file a workover claim, you should seek legal advice immediately.
What does WorkCover cover?
WorkCover WA is the administrative agency for the workers’ compensation scheme, injury management scheme and other rules and regulations relating to workers compensation work-related injury compensation claims in Western Australia. Whether you are an employer seeking contact and trying to obtain workers compensation insurance, or an employee trying to make a claim or get generic advice, WorkCover provides valuable information as a good starting point.
If you have an accepted WorkCover claim, your worker’s compensation benefits typically cover the following areas:
- Payment of worker compensation weekly salary (i.e, workers comp wage)
- Payment of medical treatment expenses
- Payment of rehabilitation expenses
- Payment of legal costs
- Payment of ongoing care
- Payment of funeral expenses
What does workers compensation not cover?
Your workers compensation benefits usually cover loss of income due to the injury, payment of medical treatment and expenses, and a contribution towards legal fees if you hire a lawyer to represent you in WorkCover or district court in a common law claim if the claim is successful or settled. Other benefits include reasonable out of pocket expenses as a result of your physical injury, psychological injury or disease caused by your work. However, workers compensation does not cover:
- Employment law benefits – if you have an ongoing employment law case against your employer, workers compensation only covers the injury-related compensation. It does not cover any benefits or entitlements for your employment law matter.
- Failure to Use Appropriate Clothing / Equipment – failure or without reasonable excuse to use protective equipment, clothing, or accessories provided by his employer for the worker’s use unless the injury has serious and permanent effects or results in death (note: denial on this basis is rare).
- Caused by Alcohol or Drugs – injury caused by the voluntary consumption of alcoholic liquor or of a drug of addiction, or both, which impairs the proper functioning of his faculties unless the injury has serious and permanent effects or results in death.
- Serious and Willful Misconduct – other serious and wilful misconduct, unless the injury has serious and permanent effects or results in death.
No Win, No Fee Lawyers
Under the No Win, No Fee arrangement, you won’t need to pay Foyle Legal’s Legal fees (the fees that we charge for the work we do on your claim), unless we get you a settlement amount.
Your lawyer will take you through this arrangement in more detail including any terms and conditions in your obligation free first initial consultation.
How long can a workers compensation claim last?
A workers comp claim often starts when you make a workcover claim, and concludes when you settle your claim. In theory, a workers comp claim can continue indefinitely, it is only limited by the statutory benefits and statutory payments for your claim. How long would a workers compensation claim last depends on the following factors:
- Your whole body impairment rating (WPI)
- Your eligibility for common law claims
- Your rate of pay prior to the injury
- How fast you reach medical stabilisation
- Your WorkCover disputes
- Your personal circumstances
Your whole body impairment rating (WPI)
Your WPI (whole person impairment) determines whether or not you have the right to elect for a common law claim.
If your WPI is less than 15%, you are not able to elect to sue your employer in a common-law action. In this case, the cumulative payments for your workcover claim should be less than the prescribed amount. This means, your worker’s comp payment will last as long as you have money remaining in your prescribed amount unless you settle it prior to running out of the prescribed amount.
The prescribed amount is made up of 3 components:
- Payment to worker of weekly payments of compensation and permanent impairment benefits
- Medical and hospital expenses
- Vocational rehabilitation expenses
Please note, once you run out of money in the prescribed amount, an additional amount of up to 75% of the Prescribed amount may be claimable if you are permanently totally incapacitated.
If you have a limited common law claim, the rate at which you can claim weekly payments of compensation will fall (if they have not run out) and therefore your prescribed amount may last a longer period.
If you have an unlimited common-law action, there is no ceiling on how much you can claim but you will need to prove negligence at trial and that your level of whole person impairment is not less than 25% at trial.
Your eligibility for common law claims
If you meet the requirement for a common law claim and make an election for common law claims. When you make a claim for common law, it’s likely to prolong your workcover claim. This is because when you make a claim for common law, you will need to start legal action at the District Court of WA. Once the legal proceeding starts for the common law claims, there is a set process we must follow. Ordinarily, your workcover claim will not settle until the common law claim is concluded.
Your rate of pay prior to the injury
If your rate of pay prior to the injury is high, and you don’t return to work in a real role, you reach the prescribed amount earlier. This means your worker’s comp payments will run out faster. Workers compensation for FIFO mining workers often falls into this category.
If your rate of pay prior to the injury or illness is low, it will take you longer to reach the prescribed amount. This means your worker’s comp payment can last longer.
Your injury, your recovery and how fast you reached medical stabilisation
Technically speaking, it is not advisable to settle a workers comp claim until you reach medical stabilisation. If you have a bad injury or illness with a long recovery time, you will generally need to wait longer to reach medical stabilisation.
Your workcover disputes
Workcover disputes are very common, especially workcover stress claims. Each of your disputes will need to be addressed individually and takes time. The more disputes you have, the longer your claim may take to settle.
Other personal circumstances that affect your decision to settle a workers compensation claim
In many cases, we have clients who want to shortcut the worker’s comp claim process and want to settle it as soon as possible because of personal reasons.
Where workers are on a high rate of pay and are unlikely to reach the common law threshold it may make sense to settle the claim at an earlier time to maximise a settlement. Workers will ordinarily need assistance to do this through lawyers.
How are workers comp claims paid in the injury management scheme?
If you make a claim for workers compensation, your workers comp weekly payments are paid by your employer and reimbursed by the worker’s compensation insurer. Medical expenses to which you are entitled are paid to you by reimbursement or directly to the medical provider.
When you settle your workers comp claim, you will receive a lump-sum payment of compensation. This lump sum amount is paid directly by your employer’s workers compensation insurance company.
What is the average settlement for workers comp?
Some of Foyle Legal clients receive compensation into five or six figures (i.e, common law claims) for their worker’s comp settlement. The settlement amount for each claim is determined by your situation, the facts of your case and the negotiation between you and the defendant (i.e, employer’s insurer and their lawyers).
What are the steps in the worker’s compensation claim process?
The steps in the workers compensation claims are as follow:
- Make a workers compensation claim
- Submit your workers compensation claim form together with your First Certificate of Capacity to your employer
- Wait for your employer’s workers compensation insurance company to accept your worker’s compensation claim
- If your worker’s compensation claim is accepted, you should start receiving workers’ compensation weekly payments and payment for medical treatment and expenses
- As your medical conditions continue to improve, your insurance company may ask you to participate in the return to work program.
- Your employer’s workers comp insurer or their lawyer may request you to be reviewed by a WorkCover Approved Medical Specialist. This is called an AMS review. It’s your obligation to attend the AMS report.
- Negotiation of workers comp settlement may take place at any time but typically after your AMS Review.
- Once your worker’s comp claim is settled, you will receive a lumpsum payout of your worker’s comp claim. This marks the conclusion of your worker’s compensation claim.
If your worker’s comp claim is rejected or pended by the worker’s compensation insurer. You can dispute the decision with WorkCover WA. If you intend to dispute a decision with workover WA. It is best to contact a specialist workers compensation lawyer first. In the past, we have seen clients who lodged disputes with WorkCover’s conciliation service before consulting a lawyer. In most cases, the conciliation application was poorly prepared and led to failure in the dispute resolution process.
How is workers compensation calculated?
The calculation of workers compensation weekly payment differs depending on whether or not you are an award worker or non-award worker prior to the injury or illness. The calculation is complex, it is important to contact and consult a lawyer to make sure you are getting the correct payment. If your payment is incorrectly calculated, we can act for you and help you to raise a dispute in the WorkCover conciliation Service. In the case of common law claims, factors such as compensation for pain and suffering also plays an important role.
How much does workers comp pay in a settlement?
How much does worker’s comp pay in a settlement depends on how much money you have been paid in the past and how much is left in your prescribed amount. It is a negotiated outcome. The prescribed amount is the maximum you can get for your injury, subject to various extensions, while the settlement amount is the agreed amount on how much both sides (injured worker and their lawyers and the employer’s insurer) believe is needed to compensate the injured worker for loss wages, future medical expenses, future rehabilitation expenses, and future ongoing expenses as a result of the injury or illness.
Are volunteers covered by insurance?
Volunteers are not covered by workers compensation insurance. An employer may take out Volunteer Personal Accident Insurance.
Getting Legal Advice
If you have made a WorkCover claim in WA and would like more information about how to progress your personal injury claim. please contact the lawyers at Foyle Legal for your obligation free claim review. We can help with your workcover claim as well your common law claims and TPD claims. It’s 100% confidential and you can rest assured that your personal information is protected. For qualified personal injury matters in Western Australia, we provide legal assistance as lawyers on a No Win, No Fee basis.
If you are just starting out with your personal injury claim and would like to find out more information about personal injury compensation. Please feel free to check out our personal injury faq and workers compensation faq pages.