Part B.1 - what compensation may cover

Question 1

B2 Medical, hospital and rehabilitation expenses

Answer 1

Workers can claim expenses relating to medical treatments and services, including hospital and rehabilitation

Question 2

B2 Medical, hospital and rehabilitation expenses

Understanding eligibility

Medical, hospital and rehabilitation expenses will be paid where the treatment or service:

Answer 2

■ meets the definitions described in Section 59 of the 1987 Act
■ takes place while the worker is entitled to receive compensation (the compensation period) for the medical, hospital and rehabilitation expenses
■ is reasonably necessary because of the injury
■ is pre-approved by the insurer (unless the treatment or service is exempt from pre-approval – see below).

Question 3

B2 Medical, hospital and rehabilitation expenses

Understanding eligibility

A worker (and escort if necessary) who needs to travel for an approved treatment or service is also entitled to be reimbursed for

Answer 3

fares, travel costs and maintenance, necessarily and reasonably incurred.
The worker must gain prior approval by the insurer for the incurred travel costs (unless the travel is for treatment exempt from prior approval).

Question 4

B2 Medical, hospital and rehabilitation expenses

Understanding eligibility

The worker is not entitled to travel expenses for a treatment or service where

Answer 4

it is provided at a location that necessitates more travel than is reasonably necessary

Question 5

Compensation period

Answer 5

Workers may claim medical, hospital and rehabilitation expenses during a specific compensation entitlement period

Question 6

Compensation period

Criteria:
Workers with no permanent impairment or a permanent impairment assessed as 1%–10%

Answer 6

Compensation period:
Two years from:
■ when weekly payments stop, or
■ from the date of claim if no weekly payments made

Question 7

Compensation period

Criteria:
Workers with a permanent impairment assessed as 11%–20%

Answer 7

Compensation period:
Five years from:
■ when weekly payments stop, or
■ from the date of claim if no weekly payments made

Question 8

Compensation period

Criteria:
Workers with high needs. This refers to workers:
■ with a permanent impairment assessed as greater than 20%
■ where an approved medical specialist who has declined to make an assessment as the
worker has not reached maximum medical improvement
■ whose insurer is satisfied that the worker is likely to have a permanent impairment of greater than 20%

Answer 8

Compensation period:
for life

Question 9

Determining what is reasonably necessary

Before approving or paying for a medical, hospital or rehabilitation treatment or service, an insurer will determine, based on the facts of each case, whether the treatment or service is:

Answer 9

■ reasonably necessary, and
■ required as a result of the injury.

Question 10

Determining what is reasonably necessary

When considering the facts of the case, the insurer should understand that:

Answer 10

■ what is determined as reasonably necessary for one worker may not be reasonably necessary for another worker with a similar injury
■ reasonably necessary does not mean absolutely necessary
■ although evidence may show that the similar outcome could be achieved by an alternative treatment, it does not mean that the treatment recommended is not reasonably necessary.

Question 11

Determining what is reasonably necessary

The above points should be sufficient in most cases for an insurer to determine reasonably necessary.
Where the insurer remains unclear on whether a treatment is reasonably necessary, then the following factors may be considered:

Answer 11

■ the appropriateness of the particular treatment
■ the availability of alternative treatment
■ the cost of the treatment
■ the actual or potential effectiveness of the treatment
■ the acceptance of the treatment by medical experts

Question 12

Accessing treatment without pre-approval

Workers can receive the following reasonably necessary treatments and services as a result of the work related injury (including reasonably necessary travel) without pre-approval from the insurer.

Treatment:
Initial treatment

Answer 12

Expense:
Any treatment within 48 hours of the injury happening.

Question 13

Accessing treatment without pre-approval

Workers can receive the following reasonably necessary treatments and services as a result of the work related injury (including reasonably necessary travel) without pre-approval from the insurer.

Treatment:
Nominated
treating doctor

Answer 13

Expense:
Any consultation or case conferencing for the injury, apart from telehealth and
home visits.

Any treatment during consultation for the injury, within one month of the date of injury

Question 14

Accessing treatment without pre-approval

Workers can receive the following reasonably necessary treatments and services as a result of the work related injury (including reasonably necessary travel) without pre-approval from the insurer.

Treatment:
Public hospital

Answer 14

Expense:
Any services provided in the emergency department, for the injury.

Any services after receiving treatment at the emergency department for the injury,
within one month of the date of injury

Question 15

Accessing treatment without pre-approval

Workers can receive the following reasonably necessary treatments and services as a result of the work related injury (including reasonably necessary travel) without pre-approval from the insurer.

Treatment:
Medical
specialists

Answer 15

Expense:
If referred by the nominated treating doctor, any consultation and treatment
during consultations for the injury (apart from telehealth), within three months of
the date of injury.

Note: Medical specialist means a medical practitioner recognised as a specialist in
accordance with the Schedule 4 of Part 1 of the Health Insurance Regulations 1975
who is remunerated at specialist rates under Medicare.

Question 16

Accessing treatment without pre-approval

Workers can receive the following reasonably necessary treatments and services as a result of the work related injury (including reasonably necessary travel) without pre-approval from the insurer.

Treatment:
Diagnostic
investigations

Answer 16

Expense:
If referred by the nominated treating doctor for the injury:
■ any plain x-rays, within two weeks of the date of injury
■ ultrasounds, CT scans or MRIs within three months of the date of injury, where the
worker has been referred to a medical specialist for further injury management.

On referral by the medical specialist for the injury, any diagnostic investigations
within three months of the date of injury.

Note: A General Practitioner’s MRI referral must meet the Medicare Benefits
Schedule criteria.

Question 17

Accessing treatment without pre-approval

Workers can receive the following reasonably necessary treatments and services as a result of the work related injury (including reasonably necessary travel) without pre-approval from the insurer.

Treatment:
Pharmacy

Answer 17

Expense:
Prescription and over-the-counter pharmacy items prescribed by the nominated
treating doctor or medical specialist for the injury and dispensed:
■ within one month of the date of injury, or
■ after one month of the date of injury if prescribed through the Pharmaceutical Benefits Scheme.

Question 18

Accessing treatment without pre-approval

Treatment:
SIRA-approved physical treatment practitioners
(physiotherapist, osteopath,
chiropractor, accredited
exercise physiologist)

Answer 18

Expense:
Up to eight consultations if the injury was not previously treated and treatment starts within three months of the date of injury.
Up to three consultations if the injury was not previously treated and treatment
starts over three months after the date of injury.
Up to eight consultations per Allied health recovery request (AHRR) if the same
practitioner is continuing treatment within three months of the date of injury and:
■ the practitioner sent an AHRR to the insurer, and
■ the insurer did not respond within five working days of receiving the AHRR.
One consultation with the same practitioner if the practitioner previously treated
the injury over three months ago. This is a new episode of care.

One consultation with a different practitioner if the injury was previously treated.
Up to two hours per practitioner for case conferencing that complies with the applicable Fees Order.

Up to $100 per claim for reasonable incidental expenses for items the worker
uses independently (such as strapping tape, theraband, exercise putty, disposable
electrodes and walking sticks).

Notes:
■ Consultations with an accredited exercise physiologist require a referral from a medical practitioner.
■ All treatments exclude home visits, telehealth and practitioner travel.
■ A list of SIRA approved practitioners can be found at www.sira.nsw.gov.au.
See the SIRA workers compensation guideline for the approval of treating health
practitioners for more on practitioner approval

Question 19

Accessing treatment without pre-approval

Treatment:
SIRA-approved
psychologist or
counsellor

Answer 19

Expense:
Up to eight consultations if a psychologist or counsellor has not previously treated
the injury and treatment starts within three months of the date of injury.

Up to three consultations if a psychologist or counsellor has not previously treated
the injury and treatment starts over three months after the date of injury.

Up to eight consultations per Allied health recovery request (AHRR) if the same
practitioner is continuing treatment within three months of the date of injury and:
■ the practitioner sent an AHRR to the insurer, and
■ the insurer did not respond within five working days of receiving the AHRR.
One consultation with the same psychologist or counsellor if the practitioner
previously treated the injury over three months ago. This is a new episode of care.
One consultation with a different psychologist or counsellor if the injury was
previously treated.
Up to two hours per practitioner for case conferencing that complies with the applicable Fees Order.
Up to $100 per claim for reasonable incidental expenses for items the worker uses independently (such as relaxation CDs and self-help books).

Notes:
■ These consultations require a referral from a medical practitioner.
■ All treatments exclude home visits, telehealth and practitioner travel.
■ A list of SIRA approved practitioners can be found at www.sira.nsw.gov.au.
See the SIRA workers compensation guideline for the approval of treating health
practitioners for more on practitioner approval

Question 20

Accessing treatment without pre-approval

Treatment:
Interim
Payment
Direction

Answer 20

Any treatment or service under an Interim Payment Direction from the Registrar
(or delegate) of the Workers Compensation Commission directing that medical
expenses be paid

Question 21

Accessing treatment without pre-approval

Treatment:
Commission
determination

Answer 21

Any treatment or service that has been disputed and the Workers Compensation
Commission has made a determination to pay for treatment or services

Question 22

Accessing treatment without pre-approval

Treatment:
Permanent
impairment
medical
certificate

Answer 22

Obtaining a permanent impairment medical certificate or report, and any associated examination, taken to be a medical-related treatment under section 73(1) of the 1987 Act.

Question 23

Accessing treatment without pre-approval

Treatment:
Hearing needs
assessment

Answer 23

The initial hearing needs assessment where the:
■ hearing service provider is approved by SIRA, and
■ nominated treating doctor has referred the worker to a medical specialist who
is an ear, nose and throat doctor, to assess if the hearing loss is work-related
and the percentage of binaural hearing loss.

Note: Hearing needs assessment includes obtaining a clinical history, hearing
assessment as per Australian/New Zealand Standard 1269.4:2005, determination of communication goals, recommendation of hearing aid and clinical rationale for
hearing aid.

Question 24

How to claim treatment and services

As a worker, you or your provider must give the insurer enough information to determine whether the treatment or service you have asked for is or was reasonably necessary.
This information might include:

Answer 24

■ a Workers compensation certificate of capacity recommending treatment
■ allied health recovery requests
■ specialist referrals or reports

Question 25

How to claim treatment and services

If the insurer needs to know more, it should first contact the

Answer 25

treatment provider. If the provider does not supply more information, or the information is inadequate or inconsistent, the insurer may then ask for an independent opinion. This may require you to attend a medical appointment.

Question 26

Determining liability

The insurer must within 21 days of receiving a claim for medical expenses:

Answer 26

■ accept liability, or
■ dispute liability (see B10)

Question 27

Determining liability

However, if the insurer has started provisional payments and notified the worker (see A2), it only needs to determine liability

Answer 27

before these provisional payments end (maximum $7,500)

Question 28

Determining liability

If an insurer has approved specific services, it is liable for the related costs unless:

Answer 28

■ the entitlement stops due to section 59A of the 1987 Act
■ the insurer tells the worker that it disputes liability for the services before the services are provided
(see B10)

Question 29

Determining liability

If the insurer knows an entitlement will end on a future date, it should inform the

Answer 29

worker. It should also inform the provider about this date when it approves expenses

Question 30

Determining liability

If the insurer disputes liability for services after previously approving, it should

Answer 30

also tell the provider that it has withdrawn its approval

Question 31

Determining rates for treatment and services

To work out how much to pay for a treatment or service, the insurer should use the

Answer 31

relevant SIRA Workers Compensation Fees Order, available from www.sira.nsw.gov.au. A schedule in each Order sets out the maximum gazetted amount that can be reimbursed for a medical treatment or service.

Question 32

Determining liability

If the insurer disputes liability for services after previously approving, it should

Answer 32

also tell the provider that it has withdrawn its approval.

Question 33

Determining rates for treatment and services

To work out how much to pay for a treatment or service, the insurer should use the relevant SIRA Workers Compensation Fees Order, available from www.sira.nsw.gov.au. A schedule in each Order sets out the maximum gazetted amount that can be reimbursed for a medical treatment or service.

For treatments or services not covered by a Fees Order, the insurer should

Answer 33

agree a fee with the provider beforehand, based on what the community would normally pay. The insurer should specify these costs when notifying the worker and provider of its approval.

A worker is not to pay any amount above maximum amounts set by SIRA

Question 34

B3 Domestic assistance

Workers can claim the cost of domestic assistance for tasks such as:

Answer 34

■ household cleaning and laundry
■ lawn or garden care
■ transport not otherwise covered as a medical, hospital and rehabilitation expense.

Question 35

A worker can receive domestic assistance where:

Answer 35

a medical practitioner has certified, based on a functional assessment, that the assistance is reasonably necessary and that the necessity arises directly from the worker’s injury, and
■ the worker did the domestic tasks before the injury happened, and
■ the injury to the worker has resulted in a permanent impairment of at least 15 per cent or if the assistance is temporary, up to six hours a week for up to a total period of three months (whether or not consecutive), and it follows a care plan the insurer has set up in line with this section.

Question 36

Determining liability in Domestic Assisstance

The insurer must within 21 days of receiving a claim:

Answer 36

■ accept liability, or
■ dispute liability (see B10)

The insurer must establish a care plan with the worker and medical practitioner, based on what it accepts is reasonably necessary for the worker. It should do this before paying compensation.

Question 37

How to design a domestic assistance care plan

As an insurer, you must establish a care plan that sets out the domestic assistance you have approved. As a minimum, it must state the:

Answer 37

■ task(s) it covers and the provider’s name
■ number of hours and their frequency
■ dates the tasks are approved from and to
■ cost or rate due and total cost.

Question 38

How to design a domestic assistance care plan

You can add this care plan template to the worker’s injury management plan:

Answer 38

Details can contain:
Task
Provider
Hours
Frequency
Approved From
Approved To
Cost or Rate
Total Cost

Question 39

Gratuitous domestic assistance

Answer 39

domestic assistance provided to a worker for which the worker has not paid and is not liable to pay

Question 40

Reimbursing gratuitous domestic assistance

People providing this assistance can claim compensation directly from the insurer. To do this, they must provide information to demonstrate that they have lost income or foregone employment because of their assistance.
Information might include:

Answer 40

■ pay slips showing fewer hours of overtime or of casual work, with a supporting letter from their employer
■ that they have moved from full-time to part-time work
■ a certified copy of the letter of resignation or termination, giving reasons

Question 41

Reimbursing gratuitous domestic assistance

The amount of lost income or foregone employment is not relevant to

Answer 41

the amount of compensation that may be provided to the person

Question 42

Reimbursing gratuitous domestic assistance

The provider of gratuitous domestic assistance should be paid a proper and reasonable amount for the services provided. There is however, a maximum amount that an insurer can pay for gratuitous domestic assistance. The maximum hours that can be paid is capped at 35 hours a week. The hourly rate will be calculated by:

Answer 42

■ taking the Australian Bureau of Statistics’ full-time adult average weekly (ordinary time) earnings of all NSW employees
■ dividing this number by 35

Question 43

Verifying and approving gratuitous domestic assistance

The person providing the assistance must claim and the insurer must pay for eligible services as they are provided. Once approved, the compensation goes to the

Answer 43

person providing the assistance, not the worker.

Question 44

Verifying and approving gratuitous domestic assistance

Providers of gratuitous domestic assistance must submit a

Answer 44

diary of what they have done before the insurer approves and pays compensation. Both the provider and the worker (if able) must sign the diary.

Question 45

Verifying and approving gratuitous domestic assistance

As a minimum, the diary should include the

Answer 45

date, services performed and hours worked.

Question 46

B4.1 Return to work assistance (new employment assistance)

Answer 46

Workers may be able to claim new employment assistance that will enable them to return to work with a new employer

Question 47

New employment assistance the worker can receive

New employment assistance expenses may include:

Answer 47

■ transport
■ child care
■ clothing
■ education or training
■ equipment, or
■ any similar service or assistance

Question 48

New employment assistance the worker can receive

The maximum amount that a worker can claim for new employment assistance is a cumulative total of

Answer 48

$1,000 in respect of the injury received

Question 49

B4.1 Return to work assistance (new employment assistance)

Understanding eligibility

Workers are able to access new employment assistance where:

Answer 49

■ they are unable to return to work with their pre-injury employer because of the injury
■ they accept an offer of employment with a new employer
■ the offer of employment has been made in writing
■ the offer of employment is for a period of three months or more, and
■ the new employment assistance is provided to assist the worker to return to work.

Question 50

How to make a claim for new employment assistance

As a worker, you must supply the following information to the insurer to make a claim:

Answer 50

■ a copy of the written offer of employment
■ information on the new employment assistance that is being claimed
■ how the new employment assistance will assist you to return to work
■ the amount claimed including supporting invoices or quotes

Question 51

B4.1 Return to work assistance (new employment assistance)

Determining liability

The insurer must within 14 days of receiving a claim for new employment assistance:

Answer 51

■ accept liability, or
■ dispute liability (see B10).

Question 52

Further vocational assistance

SIRA administers vocational rehabilitation programs that can assist workers to return to work. The worker may be eligible for alternative funding from a vocational rehabilitation program where:

Answer 52

■ they have exhausted their entitlement to new employment assistance
■ they are not eligible for the new employment assistance, or
■ the insurer disputes liability for the new employment assistance

Question 53

B4.2 Return to work assistance (education or training
assistance)

Answer 53

Workers may be able to claim the cost of education or training that will assist them to return to work.

Question 54

B4.2 Return to work assistance (education or training
assistance)

Education or training assistance the worker can receive

The cost of education or training may include:

Answer 54

■ education or training course fees
■ other related expenses (for example, text books, travel).

Question 55

Education or training assistance the worker can receive

The maximum amount that a worker can claim for education or training expenses is a cumulative total

Answer 55

of $8,000 in respect of the injury received

Question 56

B4.2 Return to work assistance (education or training
assistance)

Understanding eligibility

Workers are able to access education or training assistance where:

Answer 56

■ the worker has been assessed as having a permanent impairment of more than 20 per cent (see B6)
■ weekly payments have been paid or payable to the worker for more than 78 weeks
■ the education or training is provided to assist the worker to return to work
■ the education or training is consistent with the workers injury management plan, and
■ the training is provided by either:
– a NVR registered training organisation within the meaning of the National Vocational Education and Training Regulator Act 2011 of the Commonwealth, or
– a registered higher education provider within the meaning of the Tertiary Education Quality Standards Agency Act 2011 of the Commonwealth.

Question 57

The injury management plan

A worker’s injury management plan must be established by the insurer in consultation with the

Answer 57

worker, employer and treating doctor to the extent that their cooperation and participation allow. The insurer must as far as possible ensure that any education or training provided for a worker under an injury management plan is reasonably likely to lead to a real prospect of employment or an appropriate increase in earnings for the worker

Question 58

How to make a claim for education or training assistance

Answer 58

As a worker, to make a claim for education or training assistance you must complete the Training application form and provide this to the insurer. This form is available at www.sira.nsw.gov.au

Question 59

Determining liability

The insurer must within 21 days of receiving a claim for education or training assistance:

Answer 59

■ accept liability, or
■ dispute liability (see B10)

Question 60

Further vocational assistance

SIRA administers vocational rehabilitation programs that can assist workers to return to work. The worker may be eligible for alternative funding from a vocational rehabilitation program where:

Answer 60

■ they have exhausted their entitlement to education or training assistance
■ they are not eligible for education or training assistance, or
■ the insurer disputes liability for education or training assistance.

Question 61

B5 Property damage

Workers can also claim compensation for damage to some items of property.

If property is damaged because of a work-related accident, a worker can make a claim for the repair or replacement of:

Answer 61

■ crutches
■ artificial members, eyes, or teeth
■ other artificial aids
■ spectacles
■ clothes
■ the amount of any fees paid or wages lost by the worker due to attending a consultation, examination or prescription to replace the property.
The worker does not have to be injured to claim for property damage.

Question 62

How to claim for property damage

As a worker, you must claim the reasonable costs of repairing or replacing damaged item(s) from the insurer in writing.

You must to include enough information so the insurer can determine:

Answer 62

■ that an accident happened because of or during your employment
■ what types of items were damaged and their value, and
■ how they were damaged

Question 63

Determining liability
The insurer must within 28 days of receiving a claim for property damage:

Answer 63

■ accept liability, or
■ dispute liability (see B10).

Question 64

Deciding what compensation is payable

Once approved, the compensation should equal the reasonable cost of repairing or, if necessary, replacing the damaged property, up to:

Answer 64

■ $2,000 for crutches, artificial members, eyes or teeth, other artificial aids or spectacles
■ $600 for clothing.

This amount can be increased on a case by case basis by application to SIRA or a direction from the Workers Compensation Commission.

Question 65

Deciding what compensation is payable

Compensation is not payable if the damage:

Answer 65

■ was caused by the worker’s serious and wilful misconduct
■ was caused intentionally by the worker, or
■ was not caused by an accident arising from or during the worker’s employment.

Question 66

B6 Lump sum compensation for permanent impairment

Workers can claim lump sum compensation, such as permanent impairment or permanent injuries.

A claim for lump sum compensation is for:
Type of loss:
Permanent impairment For an injury received on or after 1 January 2002

Answer 66

Eligibility
■ The permanent impairment for a physical injury is greater
than 10%
■ The permanent impairment for a primary psychological injury
is at least 15%

Question 67

B6 Lump sum compensation for permanent impairment

Workers can claim lump sum compensation, such as permanent impairment or permanent injuries.

A claim for lump sum compensation is for:
Permanent injuries For an injury received before 1 January 2002

Answer 67

See the Table of Disabilities.

Question 68

Where a claim for lump sum compensation has been made and that claim has been resolved, a worker has no further entitlement to lump sum compensation.

Section 66 (1A) of the 1987 Act

However, a worker who made a claim for lump sum compensation before 19 June 2012

Answer 68

may be entitled to make one further lump sum compensation claim.

Question 69

How to claim lump sum compensation for an injury received on or after 1 January 2002

As a worker, your claim must be in writing and describe:

Answer 69

■ what the injury is and any impairments arising from it
■ when it happened
■ any previous injury, condition or abnormality, which caused or might have caused part of an impairment, including any related compensation
■ any previous employment, which caused or might have caused the injury

Question 70

How to claim lump sum compensation for an injury received on or after 1 January 2002

It must include a report from a permanent impairment assessor listed on the SIRA website, as trained in the assessment of the part or body system being assessed. The report must include:

Answer 70

■ a statement that the condition has reached maximum medical improvement
■ an assessment on the part or system of the body being assessed including the percentage of permanent impairment in line with the NSW workers compensation guidelines for the evaluation of permanent impairment in effect at the time of the examination
■ if the claim relates to hearing loss, a copy of the audiogram used for the medical report. If the claim is the first notification of the injury, you must then supply information to show that:
■ you were a worker, as defined by sections 4 or 5 and Schedule 1 of the 1998 Act, at the date of
the injury
■ the injury meets the definition in section 4 of the 1998 Act.

Question 71

How to claim lump sum compensation for an injury received before 1 January 2002

As a worker, your claim must be in writing and describe:

Answer 71

■ what the injury is
■ when it happened
■ any previous injury, condition or abnormality, which caused or might have caused part of the loss or impairment, including any related compensation
■ any previous employment, which caused or might have caused the injury.

Question 72

How to claim lump sum compensation for an injury received before 1 January 2002

The claim must also include:

Answer 72

■ the percentage amount of loss or impairment measured of an injury described in the Table of Disabilities
■ a medical report from a medical practitioner supporting the amount of loss or impairment claimed
■ if the claim relates to hearing loss, a copy of the audiogram used for the medical report.

Question 73

How to claim lump sum compensation for an injury received before 1 January 2002

If the claim is the first notification of the injury, you must also supply information to show that:

Answer 73

■ you were a worker as defined by section 4 of the 1998 Act at the date of the injury
■ the injury meets the definition in section 4 of the 1998 Act.

Question 74

Determining liability

Regardless of the date of injury, the requirements for determining liability for lump sum compensation claims are

Answer 74

the same where the lump sum compensation claim has been made on or after 1 January 2002.

Question 75

Determining liability

If the degree of permanent impairment or injuries is fully ascertainable, the insurer must within one month of receiving a claim:

Answer 75

■ accept liability and make a reasonable offer of settlement, or
■ dispute liability (see B10).

Question 76

Determining liability

‘Fully ascertainable’ means the degree of impairment or injury has been:

Answer 76

■ agreed by the parties, or
■ determined by an approved medical specialist (and not appealed).
Otherwise, the insurer has two months after a worker has provided all relevant information to dispute liability or make an offer of settlement.

Question 77

Determining liability

If the insurer determines that all relevant particulars have not been provided about the claim, within two weeks of receiving the claim it must:

Answer 77

■ ask the worker to supply this information, and/or
■ arrange for a permanent impairment assessor listed on the SIRA website to examine the worker, and give the worker details of the appointment.
In these cases, the two-month timeframe for determining the claim begins on the date the worker supplies the requested information or attends the examination.

Question 78

The lump sum amount payable

For an injury received on or after 1 January 2002

Answer 78

Compensation must be based on an assessment
of the impairment contained in a medical report
from a permanent impairment assessor listed on
the SIRA website, as trained in the assessment of
the part or body system being assessed.

Question 79

The lump sum amount payable

For an injury received before 1 January 2002

Answer 79

compensation may be agreed based upon
medical reports or negotiated between the
parties.

Question 80

How to make a settlement offer

As an insurer, the settlement offer should include:

Answer 80

■ the details of the compensation
■ information about the injury
■ the agreed percentage of permanent impairment or permanent injury
■ details of how the offer was calculated
■ the extent of any existing condition or abnormality
■ the documents the worker submitted for the claim
■ the documents the insurer relied on in making the offer
■ information on how the worker can accept or not accept the offer
■ a statement that, if the offer is not accepted, the worker can lodge an application to resolve a dispute with the Workers Compensation Commission. This must be at least one month after the offer is made
■ the postal and email address of the Registrar of the Workers Compensation Commission
■ information about the worker getting independent legal advice or waiving the right to such advice

Question 81

Issuing a complying agreement

If the worker accepts the offer of settlement, the insurer and worker must complete a complying agreement.

It must include:

Answer 81

■ the percentage of permanent impairment or permanent injury, including the injuries described in the Table of Disabilities for permanent injuries, for which compensation is being paid
■ the percentage allowed for any pre-existing condition or abnormality
■ the medical report(s) used to assess this percentage
■ the compensation payable (percentage and monetary value)
■ the date of agreement
■ certification that the insurer is satisfied the worker has obtained independent legal advice or has waived the right to do so.

Question 82

B7 Payments in the event of death

Answer 82

If a worker dies as a result of an injury, the worker’s dependants or legal personal representative can be paid compensation for the death.

Question 83

Legal representation

Answer 83

Each dependant may be able to seek funding for legal representation by contacting the Workers Compensation Independent Review Officer on 13 94 76.

Dependants of exempt workers (police officers, fire fighters, paramedics) may be entitled to costs for legal representation and may seek to recover these costs through the Workers Compensation Commission.

Question 84

Determining liability

When the insurer is notified about a work related death, it should act promptly and not delay liability decisions.
The insurer should write to the worker’s family or the family’s legal representative to tell them that

Answer 84

compensation may be payable for the death. It should also tell them of the liability decision as soon as it has determined liability

Question 85

B7 Payments in the event of death

To assist in determining liability, the following sources of information may need to be referred to if required:

Answer 85

■ information from the employer and witnesses
■ any factual investigation
■ the death certificate
■ treating medical records
■ the coroner’s or autopsy report
■ the police report

Question 86

Assessing dependency

Before paying compensation, the insurer must determine whether there are any:

Answer 86

■ dependants who are eligible for the lump sum benefit, and how this benefit should be apportioned
■ dependent children who are eligible for weekly payments.
Anyone who believes they are a dependant must supply enough information for the insurer to determine if they meet the legal definition of dependants of a worker

Question 87

B7 Payments in the event of death

To determine who is wholly or partly dependent on the worker, the insurer should consider all the available facts and investigate further if it needs to. For example, it might consider:

Answer 87

■ any factual investigation
■ birth or death certificates
■ any marriage certificates
■ statutory declarations from possible dependants, family and those close to the worker
■ financial records.

Question 88

Determining dependency for lump sum and weekly payments

As the question of dependency for the lump sum death benefit is one of fact and degree, the insurer should carefully consider all the circumstances of a relationship. Dependency extends

Answer 88

beyond financial support to include any services the worker provided that cannot be measured financially

Question 89

Determining dependency for lump sum and weekly payments

Weekly payments apply to

Answer 89

each dependent child of the worker who is under 16 (or under 21 if receiving
full-time education at a school, college or university) at the date of the death.

Question 90

Determining dependency for lump sum and weekly payments

The insurer should gather necessary information to determine dependency. Where dependency is unclear, the insurer should

Answer 90

apply to the Workers Compensation Commission for a determination. It
should do so promptly so benefits are not delayed unnecessarily

Question 91

Apportioning payments

Where there is only one dependant (whether wholly or partly dependent), the full lump sum benefit goes to

Answer 91

that dependant. For more than one dependant, the full lump sum benefit must be apportioned between all dependants

Question 92

Apportioning payments

Apportionment is a question of fact, where the law is applied to the facts of each case. This does not mean that it calls for a purely mathematical calculation. Each case requires the application of correct legal principles to determine apportionment that takes into account all the relevant circumstances. Factors to consider may include:

Answer 92

■ the extent of past dependence and likely future dependence
■ the ages of the dependants
■ their health, special needs and lifestyles.

Question 93

Apportioning payments

The insurer should identify and notify those who might be entitled to compensation.

Answer 93

Each potential dependant must have the chance to present information or make a submission on the apportionment.

Question 94

Apportioning payments

Where there is more than one dependant identified, an application must be made to the

Answer 94

Workers Compensation Commission for a determination of the apportionment. This may be done at the same time there is an application for a determination on dependency (see above)

Question 95

Paying lump sum and weekly benefits

When a lump sum death benefit is payable, the insurer must promptly pay either:

Answer 95

■ the dependants or the NSW Trustee, in line with the apportionment ordered by the Workers Compensation Commission, or
■ the worker’s legal personal representative, if there are no dependants

Question 96

Paying lump sum and weekly benefits

Insurers should start weekly payments for dependent children as soon as possible after liability is accepted. Unless the Workers Compensation Commission orders otherwise, payments should go to the surviving parent. If there is no surviving parent, payments go to either:

Answer 96

■ the NSW Trustee for the child’s benefit, or
■ the person with guardianship, care or custody of the child (as approved by the NSW Trustee).

Question 97

Paying other expenses

The insurer will also compensate expenses for:

Answer 97

■ the worker’s funeral
■ transporting the body of the worker

Question 98

Paying other expenses

The claimant must give the insurer enough information to determine its liability and the amount it should pay.
Compensation for funeral expenses can be up to

Answer 98

$15,000. Costs for transporting the worker’s body are considered separately.

Question 99

B8 Commutation of compensation

Answer 99

A commutation is where the worker and insurer agree to a lump sum, and the insurer is no longer liable to pay future weekly payments and/or medical, hospital and rehabilitation expenses for the injury.

Question 100

B8 Commutation of compensation

Starting the process

For a claim to be commuted:

Answer 100

■ the worker and the insurer must agree to both the commutation and the amount
■ one of the parties must then apply to SIRA, with supporting information to show that all pre-conditions for a commutation have been met
■ SIRA must certify that the pre-conditions have been met
■ the Workers Compensation Commission must register the commutation agreement.

Question 101

B8 Commutation of compensation

Starting the process

Where a worker is legally incapacitated because of their age or mental incapacity

Answer 101

the Workers
Compensation Commission can determine the commutation.

Question 102

B8 Commutation of compensation

Meeting the pre-conditions

To proceed, SIRA must certify it is satisfied that:

Answer 102

■ the injury has led to at least 15 per cent permanent impairment (see B6)
■ the worker’s entitlement to permanent impairment compensation has been paid
■ more than two years have passed since the worker first claimed weekly payments for the injury
■ all opportunities for injury management and return to work have been fully exhausted
■ the worker has received weekly payments regularly for the past six months
■ the worker has an existing and continuing entitlement to weekly payments
■ the worker has not had weekly compensation payments terminated through failing to meet return to work obligations.

Question 103

B8 Commutation of compensation

Agreeing to a commutation

Before entering into a commutation agreement, the worker must receive independent legal advice.
The legal adviser must certify in writing that the worker has been advised:

Answer 103

■ on the full legal implications of the agreement
■ that it is in their best interest to get independent advice about any financial consequences before entering into the agreement.
The worker must then confirm in writing that they have received and understood this advice.
The worker can withdraw from the agreement within 14 days of entering into it by telling the insurer in writing. In effect, there is a 14 day ‘cooling off’ period.

Question 104

Applying for a commutation of compensation

A worker (or their legal representative) or the insurer can make the application for the commutation of compensation. The person completing the application should

Answer 104

■ reach an agreement on the commutation amount with both parties
■ fill in a commutation application form, available from www.sira.nsw.gov.au
■ attach all the necessary documents to show that the pre-conditions have been met
■ write the worker’s name and claim number on these attachments
■ send the application to SIRA and inform the other party that this has occurred.

Question 105

Certifying and registering an agreement for a commutation of compensation

The following steps must occur before a commutation agreement is certified and registered

Answer 105

1. SIRA issues a certificate to the lodging party once satisfied on the pre-conditions. A commutation agreement has no effect unless SIRA certifies it.
   Section 87EA of the 1987 Act
2. One of the parties lodges an application with the Workers Compensation Commission to register the agreement by forwarding SIRA’s certificate with the relevant forms, available from www.wcc.nsw.gov.au.
3. The Commission’s Registrar registers the commutation agreement, which has no effect until then.
   Section 87F (6) of the 1987 Act

Question 106

Making payment for a commutation of compensation

Answer 106

Once the agreement is registered, the insurer must pay the money:
■ within seven days of the registration, or
■ within a longer period if the agreement specifies one.

Question 107

B9 Work injury damages

Answer 107

A claim for work injury damages relates to settlement for a worker’s past economic loss and future lost earnings because of a work injury resulting from the employer’s negligence

Question 108

For a claim of work injury damages, the injury must have:

Answer 108

■ resulted from the employer’s negligence or other tort, and
■ led to permanent impairment of at least 15 per cent.

Question 109

Work injury damages

The worker must also claim lump sum compensation for the

Answer 109

injury under section 66 of the 1987 Act (see B6), either before or at the same time as claiming these damages.

Question 110

Some work injury damages claims may result in court proceedings. If starting court proceedings for work injury damages, the worker must

Answer 110

do so within three years of the injury date, unless they have the court’s leave.

Question 111

Where this time limit is reached but the permanent impairment is not fully ascertainable, the worker should claim work injury damages, detailing

Answer 111

the claim and the evidence to be relied on (apart from the degree of permanent impairment, which will be assessed when fully ascertainable).

Question 112

How to claim work injury damages

As a worker, your claim must be in writing and describe:

Answer 112

■ what the injury is and any impairments arising from it
■ when it happened
■ any previous injury, condition or abnormality, which caused or might have caused part of an impairment, including any related compensation
■ any previous employment, which caused or might have caused the injury
■ the employer’s alleged negligent act(s), and any available supporting documentation
■ the economic loss being claimed as damages and any available supporting documentation

Question 113

How to claim work injury damages

It must include a report from a permanent impairment assessor listed on the SIRA website, as trained in the assessment of the part or body system being assessed. The report must include:

Answer 113

■ a statement that the condition has reached maximum medical improvement
■ an assessment on the part or system of the body being assessed including the percentage of permanent impairment in line with the NSW workers compensation guidelines for the evaluation of permanent impairment in effect at the time of the examination
■ if the claim relates to hearing loss, a copy of the audiogram used for the medical report.

Question 114

Determining liability

Once the degree of the worker’s permanent impairment is fully ascertainable, the insurer must within one month:

Answer 114

■ accept liability, or
■ dispute liability (see B10).

Question 115

Determining liability

‘Fully ascertainable’ means the degree of impairment or injury has been:

Answer 115

■ agreed by the parties, or
■ determined by an approved medical specialist (and not appealed)

Question 116

Determining liability

If the insurer needs more information, within two weeks of receiving the claim it must:

Answer 116

■ ask the worker to supply this information, and/or
■ arrange for an independent medical practitioner to examine the worker, and give the worker details of the appointment.

In these cases, the two-month timeframe for determining the claim begins on the date the worker supplies the missing information or attends the examination.

When it has determined liability, the insurer must notify the worker whether it accepts that the degree of permanent impairment is enough to award damages (that is, at least 15 per cent).

Question 117

Making an offer of settlement

If the insurer accepts liability, it must

Answer 117

make an offer of settlement that sets out the amount of damages
or a way to determine this amount.
Where it only accepts partial liability, the offer must include enough details to show how much is accepted.

Question 118

How to make a settlement offer

As an insurer, your settlement offer should include:

Answer 118

■ details of the damages
■ information about the injury, such as the date
■ the extent of any existing condition or abnormality
■ the documents the worker submitted for the claim
■ the documents the insurer relied on in making the offer
■ information on how the worker can accept or not accept the offer
■ a statement that, if the offer is not accepted, the worker must serve on the insurer and employer a pre-filing statement setting out the particulars of the claim that will be relied on to support the claim

Question 119

Issuing a pre-filing statement

Before a worker can start mediation or court proceedings to recover work injury damages, the worker must serve a pre-filing statement on the employer and the insurer.
The worker can only do this if the insurer:

Answer 119

■ wholly disputes liability for the claim, or
■ has made an offer of settlement and one month has passed, or
■ has not determined the claim on time

Question 120

The pre-filing statement must include:

Answer 120

■ details of the claim and the evidence the worker will rely on
■ a copy of the Statement of Claim the worker intends to file in the court
■ attachments with information and documents required by the Workers Compensation Acts and Workers Compensation Commission Rules 2011.
The attachments must contain a certificate from an approved medical specialist or notification of the insurer’s acceptance that the injury has led to permanent impairment of at least 15 per cent.

Question 121

Responding to a pre-filing statement

The insurer must respond to the pre-filing statement within

Answer 121

28 days of receiving it, by accepting or
denying liability (wholly or partly)

Question 122

Responding to a pre-filing statement

If the insurer does not accept liability, it must issue

Answer 122

a pre-filing defence to the worker, detailing its defence and the evidence it will rely on