6/2 Carson Road,
Malaga, WA 6090
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. If you have made a workers compensation claim, we strongly suggest discussing the circumstance of your injury and your claim with an experienced workers compensation lawyer. At Foyle Legal, your first telephone discussion is free.
WA Workers Compensation Claim Management
What should I do when I have an injury at work?
You should inform your employer immediately if you have been injured. If there were any witnesses, then it is important that they be contacted and given the opportunity to give a statement about what happened as well so don’t forget their details!
It is often the case that the circumstances giving rise to a personal injury cases are contested so this is important.
How do I get workers compensation (workers comp)? Or how do I claim workers compensation?
To make a workers compensation claim you must:
- Complete a Workers Compensation Claim Form and
- you must ask your doctor to complete a first medical certificate.
After completing these documents, you must give the Workers Compensation Claim Form to your employer. Most WA employers have a workers compensation insurer but some larger companies are self-insured for purposes of work-related injuries and illnesses regarding their employees.
If you’re looking into engaging workplace injury lawyer who can help with your workers compensation claim–or already engaged one!–they’ll be able to guide through this process in order ot lodge it properly at court or receive payment from an insurance company.
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 to the employer in person. Sometimes there is a dispute between the worker and their employer and the Workers Compensation and Injury Management Act allows 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?
Claims follow a process as follows:
- 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.
One important issue is that if the insurer does not make a decision (accept, dispute or pend the claim) 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 Workers Compensation and Injury Manangement 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.
In legal practice it is often seen that workers who delay making a workers compensation claim face more issues in getting their claim accepted. Workers compensation 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 you’re waiting on a claim, it can be hard to know what the insurer is doing. They might say they’re conducting some kind of investigation and send out notices with instructions like “waiting for factual evidence.”
Usually, the insurer will be doing one or more of the following:
- Getting 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;
- Discussing your claim with your employer; and
- Briefing independent investigators to collect statements from you, your employer and other parties who were involved or witnessed the injury.
If you’re not getting a satisfactory answer from your employer’s insurer, we suggest telephoning them regularly and asking about what is going on with the claim. If this still isn’t working for some reason then you should seek legal advice and look at bringing a WorkCover WA application to determine liability (get liability accepted) regarding your claim.
My workers compensation claim has been denied. What should I do?
If your claim is denied, it can mean that the insurer may have fairly strong evidence to the effect that you were not injured in a manner reported (such as witness statements or medical reports).
Common causes of denial are:
- The insurer says you did not suffer your injury at work or in the course of your employment;
- You have an injury but the insurer uses medical evidence to say it was not caused by work, it is common for an insurer to say your condition has been caused by ‘wear and tear’, often called degeneration;
- Psychological injuries are usually pended and then never accepted or denied;
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. You should also obtain legal advice as WorkCover claims can be complicated.
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 react 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.
It is a fact that many employers will react badly if their employees make a workers’ compensation claim. The reality, though, is that without informing them of the injury first and foremost- you may be causing more problems for yourself than necessary by not letting them know right away!
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.
The reaction of employers varies massively from case to case but generally insurers and vocational rehabilitation providers will try and assist you to return to work and your employer will co-operate with this return to work process.
– 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 important for you to get medical certification of your condition no matter if your claim will be accepted. If approved, but without this evidence it’s likely that an employer or insurer may dispute the connection between injury and work-related incident; which could lower overall settlement amount offered by the insurer.
If you do not obtain medical evidence it is likely to effect the overall settlement of your claim. The insurer will be of the view that you have recovered or your injury is not serious and will be reluctant to pay a reasonable settlement.
If your workers compensation claim is not accepted, then the only way to get the claim determined in your favour is to make an application to WorkCover WA. In an application to WorkCover WA you must prove you are incapacitated as a ressult of the injury otherwise you will not receive weekly payments of 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?
It is common place for employers to pay out of leave benefits when a worker’s compensation claim isn’t accepted. We suggest that if this happens, you seek legal advice as soon as possible and then look to bring an application with WorkCover WA.
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 you are successful in your WorkCover claim, then not only will the insurer of your employer pay out on any losses related to injury or illness but they’ll also repay any sick leave and annual leave credits that were taken from you.
– Am I entitled to accrual of sick leave while I am on workers compensation in Western Australia?
Section 80(2) of the Workers Compensation and Injury Management Act 1981 states that ‘A worker is not entitled to receive from any employer payments for sick leave entitlements for any period for which he receives weekly payments of compensation for injury under this Act‘.
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?
Assessing permanent impairment involves clinical assessment of the claimant (worker) as they present on the day of assessment taking account of the claimant’s relevant medical history and all available relevant medical information. Generally, once a workers condition has reached Maximum Medical Improvement (MMI) an approved medical practitioner will assess the degree of permanent impairment that results from the injury.
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
Do I have a Common Law Claim?
This article applies to a ‘common law claim’ against a person’s employer. Please note that different rules apply to other common law claims.
To make a common law claim you must have a report from a WorkCover WA approved medical specialist stating that your whole person impairment percentage is not less than 15%, the worker then needs to make a common law election with WorkCover WA.
Common Law claims are claims in a court (usually the District Court in Western Australia) 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 duty imposed by a parliamentary law;
- there is a finding your injury has been caused by the negligence or breach of duty of your employer; and
- there is a finding 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. Making a common law election is a serious decision and you should get legal advice before proceeding with a common law action.
How much can I get in a limited common law claim?
If there is a finding that your Whole Person Impairment (WPI) is not less than 15% but less than 25% then an injured worker can choose to elect to pursue common law damages.
The maximum amount payable for such a common law action is in “Amount A” in the Variations to the Prescribed Amount and other Workers’ Compensation Payments minus the amount paid in workers compensation benefits. In the year from 1 July 2021 to 30 June 2022 Amount A is $502,279.00.
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 (medical expenses, travel expenses, rehabilitation expenses) cease. Assuming these workers have sufficient funds remaining for weekly payments, 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 not less than 25 per cent will have an unlimited common law claim. This means that if they choose to pursue a common law claim against their employer then:
- they will continue to receive weekly payments of compensation;
- they will continue to receive “statutory expenses” such as medical expenses, rehabilitation expenses and travel expenses;
- 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?
Foyle Legal helps you to maximise compensation payout
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.
Where do I find more information about Workers Compensation Claim in WA?
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.
Foyle Legal Provides Legal Services to all of WA
What suburbs in Perth does Foyle Legal provide legal representation to?
Looking for best personal injury & workers compensation lawyers near me in Perth? Foyle Legal provides legal presentation to Workcover claims, workplace injury claims, work accident claims, accident injury claims, and all personal injuries clients all over Perth. It includes but not limited to north of river, south of the river, Perth city areas, eastern suburbs, western suburbs and Fremantle areas.
North of the river – Northern Suburbs
Ballajura – Bassendean – Bayswater – Beechboro – Carine – Carramar – Clarkson – Connolly – Currambine – Dianella – Doubleview – Duncraig – Eden Hill – Edgewater – Embleton – Glendalough- Greenwood – Gwelup – Heathridge – Hillarys – Inglewood – Innaloo – Joondalup – Kallaroo – Karrinyup – Kingsley – Landsdale – Maida Vale – Malaga – Marangaroo – Mindarie – Mindarie Keys- Morley – Mullaloo – Munster – North Beach – Osborne Park – Padbury – Scarborough – Shenton Park – Sorrento – Trigg – Tuart Hill – Wanneroo – Warwick – Waterman – Wembley Downs – Woodlands – Woodvale – Yanchep
South of the River – Southern Suburbs
Alfred Cove – Applecross – Ardross – Attadale – Bateman – Beaconsfield – Beeliar – Bentley – Bibra Lake – Bicton – Booragoon – Bullcreek – Canning Bridge – Canning Vale – Cannington – Casuarina- Cockburn – Como – Coogee – East Victoria Park – Forrestdale – Gosnells – Jandakot – Karawara – Kelmscott – Kwinana – Melville – Mount Pleasant – Palmyra – Shelley – Spearwood – Success – Wattle Grove – Welshpool – Willetton – Wilson – Winthrop
Perth Inner City
Burswood – CBD/Northbridge – East Perth – Highgate – Leederville – Maylands – Mount Hawthorn- Mount Lawley – North Perth – South Perth – Subiaco – Victoria Park – West Leederville – West Perth – CBD – Kings Park – Northbridge – Perth
Ascot – Belmont – Carlisle – Kewdale – Newburn – Redcliffe – Rivervale
Churchlands – City Beach – Claremont – Cottesloe – Crawley – Daglish – Dalkeith – Floreat – Mosman Park – Mount Claremont – Nedlands – Swanbourne – Wembley
East Fremantle – Fremantle – Hamilton Hill – North Fremantle – O’Connor – South Fremantle
Does Foyle Legal provide Legal presentation to surrounding areas of Perth?
Yes, Foyle Legal extends legal presentation to surrounding areas of Perth. This include but limited to Avon Valley, North Coast & Valleys, Peel areas, Perth Hills, Rottnest Island, and Swan Valley.
Avon Valley – New Norcia – Northam – Other Avon Valley Areas – Toodyay – York – Clackline – Wooroloo
North Coast & Valleys
Bindoon – Chittering – Gingin – Guilderton – Lancelin – Ledge Point – Lower Chittering – Moore River – Neeragabby – Upper Chittering – Wanerie – Woodridge
Mandurah – Peel Coast – Peel Inland – Baldivis – Barragup – Boddington – Dawesville – Dwellingup- Falcon – Greenfields – Halls Head – Karnup – Mandurah – Mandurah East – Meadow Springs – Pinjarra – Port Kennedy – Quindanning – Ravenswood – Rockingham – Rockingham Beach – Safety Bay – Secret Harbour – Serpentine – Shoalwater – South Yunderup – Wannanup – Waroona- West Pinjarra
Armadale Area – Bickley – Carmel Wine Region – Kalamunda Area – Mundaring Area – Other Perth Hills Areas – Serpentine – Jarrahdale Area – Armadale – Bedfordale – Bickley – Byford – Carmel – Chidlow – Darling Downs – Darlington – Forrestfield – Gidgegannup – Glen Forrest – Gooseberry Hill – Greenmount – High Wycombe – Hovea – Jarrahdale – Kalamunda – Karragullen – Lesmurdie – Mount Helena – Mundaring – Mundijong – Orange Grove – Parkerville – Paulls Valley – Pickering Brook – Roleystone – Stoneville – Wungong
Baskerville – Belhus – Bellevue – Brigadoon – Bullsbrook – Caversham – Ellenbrook – Guildford – Hazelmere – Henley Brook – Herne Hill – Middle Swan – Midland – Midvale – Millendon – South Guildford – Swan Valley – The Vines – Upper Swan – Viveash – West Midland – West Swan – Whiteman
Does Foyle Legal provide legal service to clients in Regional WA?
Yes, we service all of WA, including remote or regional areas of Western Australia.
Caiguna – Cocklebiddy – Madura – Mundrabilla – Esperance – Woody Island – Goldfields – Balladonia – Boulder – Broad Arrow – Coolgardie – Cue – Gwalia – Kalgoorlie – Kalgoorlie-Boulder – Kambalda – Kookynie – Laverton – Leonora – Menzies – Murchison – Norseman – Warburton – Hopetoun – Munglinup – Ravensthorpe – Wheatbelt – Bolgart – Broomehill – Caballing – Corrigin – Gnowangerup – Holleton – Hyden – Kulin – Lake Grace – Lake Yealering – Merredin – Mullewa – Narembeen – Narrogin – Nungarin – Wagin – Wandering – Watheroo – Williams – Coral Coast – Cervantes to Dongara – Badgingarra – Cervantes – Dongara – Eneabba – Green Head – Jurien – Leeman – Mingenew – Port Denison – Coral Bay – Exmouth – Ningaloo Reef – Abrolhos Islands – Carnamah – Geraldton – Greenough – Northampton – Kalbarri – Port Gregory – Carnarvon – Denham – Monkey Mia – Shark Bay – North West – The Kimberley – Broome Peninsula – Broome – Cable Beach – Roebuck – Dampier Peninsula – East Kimberley – Halls Creek – Kununurra – Lake Argyle – Warmun – Wyndham – West Kimberley – Derby – Fitzroy Crossing – The Pilbara – Karijini -Pilbara Coast – Dampier – Karratha – Onslow – Point Samson – Port Hedland – Roebourne – South Hedland – Thevenard Island – Wickham – Pilbara Outback – Marble Bar – Newman – Pilbara – South West – Blackwood River Valley – Balingup Area – Balingup – Mullalyup – Boyup Brook Area – Boyup Brook – Bridgetown / Greenbushes Area – Bridgetown – Greenbushes – Nannup Area – Jalbarragup – Nannup – Geographe / Bunbury – Bunbury Area – Australind – Bunbury – Eaton – Collie River Valley Area – Collie River Valley – Donnybrook / Capel – Capel – Donnybrook – Glen Mervyn – Kirup – Peppermint Grove Beach – Ferguson Valley Area – Dardanup – Ferguson Valley – Wellington Mill – Wellington Mills via Dardanup – Harvey Area – Binningup – Cookernup – Harvey – Myalup – Preston Beach – Yarloop – Great Southern – Albany Coast – Albany – Big Grove – Bornholm – Emu Point – Little Grove – Middleton Beach – Redmond – Robinson – Bremer Bay Coast – Bremer Bay – Denmark Coast – Bow Bridge – Denmark – Golden Hill – Hazelvale – Kentdale – Nornalup – Frankland River – Frankland – Kojonup – Mount Barker / Porongurup – Amelup – Cranbrook – East Porongurup – Kendenup – Manypeaks – Mount Barker – Narrikup – Porongurup – Margaret River – Busselton/Vasse – Broadwater – Busselton – Geographe – Vasse – Dunsborough/Yallingup – Bunker Bay – Cape Naturaliste – Carbunup – Carbunup River – Dunsborough – Eagle Bay – Marybrook – Naturaliste – Quedjinup – Quindalup – Yallingup – Margaret River Central – Forest Grove – Forest Grove via Margaret River – Gnarabup – Gnarabup Beach – Karridale – Margaret Region – Margaret River – Prevelly Park – Rosa Glen – Margaret River North – Chapman Hill – Cowaramup – Gracetown – Metricup – Wilyabrup – Witchcliffe – Yelverton – Margaret River South – Augusta – Kudardup – Southern Forests – Manjimup Area – Donnelly River – Manjimup – Nyamup – Quinninup – Northcliffe Area – Pemberton Area – Pemberton – West Pemberton – Walpole Area – North Walpole – Walpole