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WorkCover Claims

Knee Replacements Are No Longer Subject to Time Limits

Knee Replacements are No Longer Subject to Time Limits

By | WorkCover Claims

Some of the most common injuries sustained in work accidents are joint injuries such as those involving hip and knee replacements. Because joints such as these are vital to everyday movement, knee injuries can severely impact both your ability to work and your general quality of life.

Moreover, even if you receive prompt and appropriate treatment, the very nature of joint injuries is that they are degenerative. This means that often, you may not even realise the true impact of an injury until a great deal of time has passed. Since 2012, the opportunity for injured workers to claim was subject to new time limitations, with a few exceptions added in 2015. Recently, a Presidential decision by the State Insurance Regulatory Authority (SIRA) was made that secures an unrestricted time limit for knee replacement surgeries.

Pacific National Pty Ltd v Baldacchino [2018]

Introduction

In late October of 1999 a long term railway employee, Mr. Baldacchino, seriously injured his left knee, badly twisting it while exiting a train-car. A few months later, he filed a claim and underwent an arthroscopic surgery to try and rectify the situation. He received payment for his treatment expenses, as well as weekly compensation for lost wages. Despite receiving treatment early on, however, Mr. Baldacchino’s knee condition deteriorated over the next several years.

Facts

When Mr. Baldacchino’s position became redundant in 2014, he was forced to retire from work. In 2016 when he turned 65, Mr. Baldacchino was sent to an orthopedic surgeon who suggested he undergo yet another surgery to address his knee injury. This time, a full knee replacement was recommended and he filed a claim regarding the costs of the surgery. After an extended review of their liability, the insurance agency (Pacific National) denied his claim. Their reason? That the original 1999 knee injury was not responsible for the knee replacement surgery recommended to Mr. Baldacchino in 2016.

Arguments

After a review by the Workers Compensation Commission, Pacific National was directed to pay for Mr. Baldacchino’s knee surgery. Pacific National objected, however, arguing that 1) there was no causal connection to the injury; and 2) the claim was precluded by the time limits listed in section 59A of the Workers Compensation Act 1987. Section 59A of the Act stated the prescribed periods of time for which an injured party can claim compensation, as well as the exceptions to the time limits.

Mr. Baldacchino’s claim was precluded from compensation by the time limit and, due to the fact that he was over the age of retirement at the time of the claim, he was not eligible to reopen a claim for weekly compensation. However, it was ruled that his knee replacement surgery did fall under one of the exceptions: artificial aid.

The reasoning was that the nature of ‘artificial aid’ has changed dramatically from its initial interpretation almost 40 years earlier, and that the term now included “anything that was specifically constructed to enable the effects of the disability to be overcome”. Additionally, it was clear that the knee replacement surgery was a result of the injury from 1999.

Consequences

The decision of the Baldacchino case serves to alleviate many of the harsh consequences caused by the 2012 amendments to the Workers Compensation Act. In particular, retired workers stand to benefit from the decision because it grants them the freedom to receive compensation for injuries that have degenerated severely over long periods of time. Moreover, the decision will likely not only affect knee replacement surgeries, but also other joint surgeries with similar impacts, such as hip replacements.

If you or a loved one have any questions regarding what types of injuries will be affected by this decision, what devices and methods will fall under the definition of ‘artificial aid’, or how you can pursue compensation after the age of retirement, please contact a professional lawyer today.

workcover claim

Work Injury Guide: What You Need to Know about Work Injury Compensation

By | WorkCover Claims

In New South Wales, injuries sustained while at work or in the course of your employment are covered by the statutory benefit scheme: WorkCover.

Made up of three parts, WorkCover is meant to promote health and safety in the workplace and provide invaluable compensation to those people who are unfortunate enough to get injured while on the job.

What Benefits can you Claim?

Some people are entitled to receive more generous compensations than the majority of the population; people who work in emergency services such as firemen, police officers, ambulance personnel, emergency service volunteers, and bushfire fighters. However, for the majority of New South Wales, five categories of benefit are available after a work-related injury.

  1. Weekly Payments: When filing a claim requesting weekly payments, you will need to first file a “Certificate of Capacity.” This certificate must be filled out by your general practitioner and sent to both your employer and the relevant insurer.It is important to be aware that under the Workers Compensation Act 1987 (NSW), you are not entitled the entirety of your preinjury wages.We advise that the maximum amount you can recover within the first 13 weeks of week payments is 95%. If you have returned to work for any period of time, then your weekly payments will be reduced by the wages that you accrue.We advise that after 14 weeks from the date you first received weekly payment. Your weekly payments will be dependent upon a formula that takes into account your current work capacity (as assessed either your treating general practitioner or in accordance with a capacity decision made by the insurer) and how many hours per week you have returned to work after the accident.We advise that after 130 weeks of receiving weekly payments, the insurer will make a capacity decision to determine your entitlement to receive weekly payments after this date. You will not be entitled to receive weekly payments after this point unless you’ve returned for work for a period not less than 15 hours per week or the insurer assesses you as being indefinitely incapable of returning to work.

    It is possible for these weekly payments to continue for up to two and a half years after your injury occurs, depending upon how the Workers Compensation Commission decides to handle your claim.

    We advise that your entitlement to receive weekly payment cannot exceed 260 weeks. If you wish to receive weekly payments after this point, you must be assessed as having suffered 21% WPI.

  1. Medical Expenses: If you are injured at work, you may be able to claim the pre-approved (by the insurer) and reasonable costs of some or all of your medical expenses. This can extend to cover treatment from doctors, physiotherapists, chiropractors, osteopaths, psychologists, counselors, and exercise trainers.You may be able to receive compensation for physical artificial aids, such as crutches, prosthetics, and medications or prescriptions. Additionally, domestic services, such as homecare, cleaning services, or even home modifications could be included in your injury compensation claim.We advise that your entitlement to receive weekly payments is not indefinite.We advise that due to the application of Section 59A of the Workers Compensation Act 1987; you are not entitled to receive medical expenses after two years from the last date you received weekly payments.We advise that is important to know when this date occurs and make your clamp for any medical expenses prior to this date.
  1. Permanent Impairment: Unfortunately, establishing your medical condition and overall impairment may take some time, usually weeks or months, as some conditions take longer to develop or prove harder to treat.However, once your whole person impairment has been determined by a specialist doctor, you may be entitled to a lump sum for permanent impairment.It must be determined that your whole person impairment is at least 10% in order to receive a lump sum, and the total amount of impairment will affect how much you will receive in weekly payments, as mentioned above.We advise that you the application of section 66 (1A) of the Workers Compensation Act New 1987, that you can only make one claim for lump sum compensation.We advise that when making a lump sum claim it is important to liaison with your treating general practitioner and specialists to determine whether you require any further treatment and/or surgery.
  1. Death Benefits: If, in the terrible event, an employee loses their life in the course of their job, death benefits exist to help compensate their loved ones. When a worker receives a fatal injury, their lump sum benefit is calculated on the first of April and October each year. These will then be distributed between the surviving dependents in accordance with need.
  1. Work Injury Damages Claims:
    Lastly you will be able to make a work injury damages claim if you can prove two thing:
    1. That your injuries were sustained due to the negligence of your employer
    2. that your injury resulted in a 15% or more whole person impairment;These damages will be calculated through to retirement age, and will include your net past and future wage loss as well as loss of superannuation.We advise that to be entitled to bring a claim a work injury damages against employer that your lump sum claim must be finalized and that you must be assessed as having at least 15% WPI pursuant to 151H of the Worker Compensation Act 1987.

Time Limits

Pursuant to Section 151D of the Workers Compensation Act 1987; any claim for work injury damages must be commenced within three years from the date of injury.

We advise that section 151DA of the Workers Compensation Act 1987, specifies certain circumstances in which time does not being to run.

We advise that the best way to guarantee that your claim isn’t barred by missing a deadline is to contact an experienced injury lawyer who will guide you through the complex process and help you get the benefits you need.

how do you know if you are entitled to a workcover claim

How Do You Know if You Are Entitled to a WorkCover Claim?

By | WorkCover Claims

WorkCover Claims in New South Wales

In January, the Australian Workers’ Compensation Statistics Report 2015-16 was published. It reported that there were over 100,000 serious Australian worker’s compensation claims during that time period and the median amount of time lost for a serious claim increased by 33%. With so many Australians missing an average of 5.6 weeks of work for serious workplace injuries, it’s no surprise that many want to know whether they are eligible to file a WorkCover claim. If this describes you or a loved one, read through our brief guide and contact a lawyer as soon as possible.

WorkCover

WorkCover in New South Wales provides statutory benefits to those injured in the course of their employment and file a successful compensation claim. In New South Wales, WorkCover is made up of three parts: Insurance and Care NSW (icare), the State Insurance Regulatory Authority (SIRA), and SafeWork NSW. The purpose of this regulatory scheme is to promote workplace health and safety and administer relevant laws, such as the Work Health and Safety Act of 2011, the Workplace Injury Management Act of 1998, and the Workers Compensation Act of 1987.

If you are injured in the workplace, WorkCover provides an affordable compensation scheme that will provide medical and financial support for injured workers.

Types of Claims

The three schemes of worker’s compensation in New South Wales are:

  1. Coalminers: These claims are determined by the District Court and are covered by a separate compensation scheme which includes legal costs.
  2. Emergency services (police, firefighters, ambulance personnel, emergency service volunteers, and bushfire fighters): The benefits offered to this category of persons tend to be more generous than the others and are paid out by the by the worker’s compensation insurer.
  3. All other types of employee: The majority of workers in New South Wales, whose potential claim benefit scheme is outlined below.

Types of Benefits

The largest group of employees in New South Wales fall into the third category of employees. For this category, there are generally 5 categories of benefit available to injured workers in NSW:

  1. Weekly payments: These are based on a formula outlined in the Act and their duration is connected to the amount received for permanent impairment. In order to receive weekly payments, you will need to send a “Certificate of Capacity” filled out by your general practitioner to your employer and the insurer. Weekly payments can last up to two and a half years after the date of the accident, depending upon the discretion of the Workers Compensation Commission.
  2. Medical expenses: Pre-approved and reasonably necessary medical expenses will be paid to the injured party by the insurer. These can include, pharmaceutical expenses, physiotherapy expenses, and travel expenses (to and from treatment for $0.55/km).
  3. Lumps sums for permanent impairment: Once you have established your medical condition, you might be able to receive one lump sum payment after being assessed by a specialist doctor who will determine the amount of whole person impairment. You are required to have at least a 10% whole person impairment in order to receive a lump sum claim.
  4. Death benefits: These exist to aid the surviving family members in the event that someone dies from an accident at work. The lump sum payable when a worker receives fatal injuries is calculated on the first of April and October each year, and will be apportioned between the surviving dependents in accordance with their level of need.
  5. Common law claims (work injury damages claims): If you are able to demonstrate both that you have suffered a 15% or more whole person impairment and that your employer was negligent, you might be able to make a work injury damages claim. This can be calculated through to retirement age and includes net wage loss (past and future wage loss) and loss of superannuation. Non-economic losses (pain and suffering, medical expenses, domestic care, etc.) are not included in a work injury damages claim.

Are you Eligible to Make a Work Injury Damages Claim?

As mentioned above, in order to make a common law claim, you need to demonstrate that your employer was negligent, and your whole person impairment has been determine dot be 15% or more. However, before a work injury damages claim can be settled, you must have received all the statutory lump sum settlements that you are entitled to.

Contact a Lawyer

If you or a family member has been injured in the workplace, in the course of your job, or due to the negligence of an employer, you may be able to file a compensation claim under WorkCover. Suffering an injury caused by your job is painful, stressful, and frightening because of the uncertainty caused by the inability to work. Contact a lawyer today so they can help you receive the benefits and peace of mind you so deserve.