Workers Compensation Claims in WA
Workplace Injury Lawyers at Foyle Legal are experts in WorkCover WA Workers Compensation claims. If you have made a workers compensation claim, contact Foyle Legal for an obligation free consultation.
Introduction to Workers Compensation and Injury Compensation Law
The following FAQ applies to the Workers Compensation and Injury Management Act 1981 (the Act) and its associated rules and regulations. It does not apply to claims made in the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) the Comcare Scheme or other workers compensation legislation.
The following answers are general legal information and should not be viewed as legal advice. The Workers Compensation legislation in Western Australia changes regularly, and while endeavours are made to ensure the information provided is correct, it may not be up to date.
In the workers compensation claim page, we have a selected a list of most frequently asked questions by our clients. In this page, we have expanded the list to include more questions from different perspective of workers compensation claim in Western Australia. Foyle Legal Youtube channel also features a series of videos on Workers Compensation Claims in WA.
WA Workers Compensation Claim Management
What should I do when I have an injury at work?
You should inform your employer immediately and make a workers’ compensation claim. If there were any witnesses you should obtain their personal details including their name, address, employer, phone number and email address so that they can provide you with a statement if required.
How do I get workers compensation (workers comp)? Or how do I claim workers compensation?
You must complete a Workers Compensation Claim Form and you must ask your doctor to complete a first medical certificate.
Give the Workers Compensation Claim Form to your employer. Most WA employers have a workers compensation insurer but some larger employers are self-insured for the purposes of workers compensation.
How can I give the Workers Compensation Claim form and first medical certificate to my employer?
The most common way to make a workers compensation claim is to give the Workers Compensation Claim form and first medical certificate, but sometimes there is a dispute between the worker and their employer and the Act prescribes other ways that you can give the Workers Compensation Claim form and first medical certificate to your employer.
Section 179 of the Act says you can give the Workers Compensation Claim form and first medical certificate to your employer in the following ways:
- By delivering it at, or sending it by post in a registered letter addressed to, the residence or place of business of your employer;
- When the employer is a body of persons, corporate or otherwise, the notice may also be served by delivering it at, or by sending it by post in a registered letter addressed to the employer at the office, or, if there is more than one office, any one of the offices of such body.
What happens after I hand my employer the Workers Compensation claim form and the first medical certificate?
If your employer is insured for workers compensation they must give the Workers Compensation Claim form and first medical certificate to their insurer within 5 days. If they do not do this then they could be fined by WorkCover’s compliance division.
Once your employer’s insurer receives the Workers Compensation Claim form and first medical certificate they must issue a notice saying they accept, dispute or can not make a decision on your claim before the expiration of 14 days after the claim is made by your employer.
Many workers do not realise that if the insurer does not make a decision within the above 14 day time period, the insurer must make workers compensation weekly payments to the worker if the worker claimed those payments pursuant to Section 57A(5) of the Act. If you have not received a notice within this 14 day period we highly recommend obtaining legal advice.
Is there a time limit for making a workers compensation claim in WA?
Section 178(1)(b) of the Act states that proceedings under the Act can only be taken if the workers’ compensation claim was made within 12 months, but the act goes on to say that the failure to make a claim within the of 12 months is not a bar to the maintenance of such proceedings, if it is shown that the employer has not been prejudiced in defending the proceedings by such failure, or if it is found that the failure was occasioned by mistake, absence from the State, or other reasonable cause.
On a practical level, if you wait a few months before making a workers compensation claim insurers will usually analyse your claim more carefully to see if it can be inferred that something else is the cause of your medical condition.
My workers compensation claim has been pended. What should I do?
When your claim is pended, the notice you receive from the insurer will normally say something along the lines of ‘waiting on factual investigation’ or ‘waiting on additional medical evidence’. Typically the insurer will be doing one or more of the following:
- Requesting your medical notes from your General Practitioner, or the practitioner who provided the first medical certificate;
- Requesting a report from your General Practitioner, or the practitioner who provided the first medical certificate;
- Conferring with your employer; and
- Briefing independent investigators to collect statements from you, your employer and other parties who were involved or witnessed the injury.
As a first step we suggest telephoning your employer’s insurer regularly, say every three days, to find out what if happening with the claim. If you do not get a satisfactory answer you can file an application at WorkCover seeking a determination as to liability. We suggest seeking legal advice before going down this path.
My workers compensation claim has been denied. What should I do?
If your claim is denied it means that the insurer in some cases they will have have fairly strong evidence (such as witness statements or medical reports) to the effect that your injury did not happen in the manner reported but in other cases they may just deny the claim as it is opposed by the insurer.
You should consider an application at WorkCover, but before you do this you should obtain statements from any witnesses and medical reports that indicate that the injury happened in the course of your work.
If your claim is for a psychological injury or psychological disease special rules apply. Your employer’s insurer may refuse the claim if it arises from industrial relations with your employer such as:
- dismissal, retrenchment, demotion, discipline, transfer or redeployment; or
- the worker’s not being promoted, reclassified, transferred or granted leave of absence or any other benefit in relation to the employment; or
- expectation of one of the two matters.
Regardless of the situation, where your claim is denied we recommend that you obtain legal advice before proceeding with a claim.
My workers compensation claim has been accepted. What happens next?
If you are certified as unfit for work you should receive weekly payments of compensation.
How much workers compensation can I get?
WorkCover provides a helpful guide regarding how much workers compensation injured workers will get by way of weekly payments. If you are able to work, but not able to work your full hours from before the injury, you should receive the difference between your payments as calculated above and the amount of money you are able to earn. You should also receive medical expenses, rehabilitation expenses and travel expenses.
Weekly payments of compensation, medical expenses and rehabilitation expenses receivable are all limited to a “prescribed amount” which can be extended in certain circumstances.
If I make a workers compensation claim (workers comp) in WA should I worry about how my boss might react?
There is no denying that some employers act badly if their employees make a workers’ compensation claim, but the reality is that if you do not inform your employer of your injury they may think you are slacking off and are not working hard for reasons other than your injury. It is usually the case that employers are kept in the loop by their insurers, and once your employer realises that your injury is a serious matter they will treat you like you are an important member of their team.
– I have made a claim for workers compensation. After I was injured I sought medical attention and obtained a first medical certificate. Should I keep going to my doctor and obtaining workers compensation medical certificates?
It is vitally important that you obtain medical certification of your condition regardless of whether your claim is accepted.
In the event that your claim is accepted, and you do not obtain medical evidence, your employer’s insurer may dispute that your injury is connected to an incident in the course of your work.
If your claim is not accepted, and you apply to WorkCover for an order for weekly payments of workers compensation, your employer’s insurer may argue that if you do not have medical certification then you should not be awarded compensation. In our experience such an argument is often accepted by WorkCover.
– My medical certificate has expired. Is it acceptable to get my doctor to back date the medical certificate?
Our experience is that WorkCover will not accept back dated medical certificates.
– My Employer’s insurer has not accepted my workers compensation claim, and has paid me wages out of my sick leave, annual leave and/or other employment benefits. Is this legal?
Sadly many workers compensation claims are not accepted, and in these circumstances it is common place and legal for employers to pay their workers out of their leave benefits. If this happens to you we suggest that you should immediately seek legal advice. If your claim is not accepted, it is up to you, as the worker, to bring an application for your claim to be accepted. If your claim is accepted, or you are successful in a WorkCover claim to make your employer and their insurer accept your claim, then your employer’s insurer should repay your employer, and your employer should credit your sick leave and annual leave back to you.
– Am I entitled to accrual of sick leave and annual leave while I am on workers compensation in Western Australia?
Sick leave and annual leave are not a statutory benefit under the Workers Compensation and Injury Management Act 1981, so you are not entitled to accrual of sick leave and annual leave while you are on weekly payments of workers compensation.
Settlement of Workers Compensation Claim (Not Common Law)
– How do I calculate out how much my claim is worth?
There are several factors that determine how much your claim is worth. The most important factors are :
- your permanent impairment;
- the wages you have lost already (usually only applicable where your claim has not been accepted);
- how much you are likely to lose in the future as a result of being unable to work;
- medical costs you have already incurred or paid (usually only applicable where your claim has not been accepted);
- medical costs you will incur in the future;
- rehabilitation costs you will inur in the future; and
- travel expenses (past and present).
What is my permanent impairment?
If you have suffered a permanent impairment or disability as a result of an injury in the course of your work then you may be entitled to compensation for that permanent impairment. To receive a lump sum for a permanent impairment, you need to be assessed by an Approved Medical Specialist as having suffered a permanent impairment as mentioned in Schedule 2 of the Act. In the event an agreement between you and your employer cannot be reached as to the degree of impairment, it is open to you to apply to have the question determined by an Arbitrator. The amount of compensation payable for permanent impairment is based on the percentage impairment as a ratio of the Prescribed Amount. The Prescribed Amount is an indexed amount (annually) under the Act which sets the monetary limit of some forms of compensation under the Act.
Workers Compensation Common Law Claims
In the event that your injury occurred after 15 November 2005 the following information applies. If your injury occurred before this time then a different Workers Compensation system will apply. Common Law claims are claims in a court (usually the District Court) against your employer. You can only be successful in a common law claim if you can prove that your employer was negligent and/or breached a relevant statutory duty your employer has to you. To access a common law claim you must obtain an opinion from an Approved Medical Specialist that your level of Whole Person Impairment (WPI) is not less than 15%. You will only be successful in a Common Law claim if the judge decides that your WPI is not less than 15% on the balance of probabilities after assessing all of the evidence.
Limited Common Law Claims?
If there is a finding that your WPI is between 15% and 24% then you will have a limited common law claim and the amount payable to you is set out as “Amount A” in the Variations to the Prescribed Amount and other Workers’ Compensation Payments. This amount includes the amount you have been paid in Workers’ Compensation payments.
Furthermore, if these workers elect to pursue a common law claim against their employer, they are subject to a step-down in weekly payments and their entitlements to other statutory benefits cease. Assuming these workers have sufficient funds remaining in the Prescribed Amount for their claim, their weekly payments will reduce as follows:
- For the first three months, the worker will receive 70% of the amount of weekly payments to which the worker would otherwise have been entitled.
- For the second three months, the worker will receive 50% of the amount of weekly payments to which the worker would otherwise have been entitled.
- Weekly payments cease after six months.
Unlimited common law claims?
Workers with a permanent whole of person impairment of at least 25 per cent will continue to receive the statutory benefits in accordance with the provisions of the Act, and there is no cap on the amount damages they can receive. Determining whether your employer was negligent in causing your injury is a technical legal skill and as a result you should obtain legal advice before proceeding with a Common Law claim.
How can Foyle Legal help?
The Director of Foyle Legal is one of only a few personal injury lawyers in Perth who has practiced as a claimant and defendant lawyer in personal injury claim. This gives Foyle Legal a unique insight into what the other party is doing which Foyle Legal can use to help you with your work injury claim. If you think you have a case, or require further assistance with your workers compensation claim, why not contact us at 0408 727 343, alternatively submit an obligation free enquiry.