Workplace Injury Claims: What’s Eligible and How to Proceed

KEY TAKE-OUTS:

• If you have been injured at work, you may be entitled to workers’ compensation.
• Although physical injuries are the most common of workers’ compensation claims in NSW, workers’ compensation claims for psychological injury claims are on the rise.
• It is important to know what to do if you have been injured at work.
• It is important to seek comprehensive legal advice early to ensure you understand your entitlements and to ensure your rights are protected.

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What Types of Injuries are Covered by Workers’ Compensation Laws in NSW?

Workplace injuries can come in many different forms. The types of injuries covered by workers compensation in NSW can be of a physical or psychological nature.

Physical Injuries

The most recent SafeWork Australia Report on Australia Workers’ Compensation Statistics indicates 87% of serious workers’ compensation claims were due to physical injury and musculoskeletal disorder, with elderly male employees the most prone to injury.

According to SafeWork, the most common mechanism of injury or disease that resulted in a serious workers’ compensation claim was body stressing (37%); falls, trips, and slips of a person (23%), and being hit by moving objects (16%).

Some of the most common physical injury compensation claims in NSW are:

• Muscle sprains, strains, and tears
• Bone fractures
• Loss of limb and amputation
• Heart attack and seizures
• Cumulative trauma injuries i.e. gradual wear and tear due to repetitive motion over longer periods of time, for example, carpal tunnel, tendonitis, and back pain
• Injuries to joints, ligaments, and tendons
• Cuts, lacerations, and punctures

Physical injuries can be sustained as a ‘frank injury’ or can be one of a gradual process. In NSW Workers Compensation law, an injury of a gradual process is classified as a ‘disease injury’. The Workers Compensation Act 1987 (NSW) regulates physical injuries of both a frank and disease nature.

If a work-related physical injury results in the death of a worker, a dependant, such as a spouse or a child, may make a claim for workers compensation benefits including the payment of funeral expenses, support payments, and lump sum compensation.

Psychological Injuries

Claims for mental stress and psychological injuries are less common than physical injuries but have steadily increased in recent years. A psychological injury can take many forms, but can include:

• Depression
• Anxiety
• Adjustment Disorder
• Post-Traumatic Stress Disorder
• A combination of the above

Psychological injuries can be caused by a number of reasons, including workplace bullying and harassment, witnessing or experiencing a traumatic event, violence and sexual harassment, a high-workload and burnout, or actions by an employer.

In NSW, a psychological injury is most commonly classified as a disease injury.

A death benefit claim may also be made by a dependant of a deceased worker if a work-related psychological injury results in the death of a worker.

Other Diseases

In some circumstances, exposure to bacteria and viruses, such as Covid-19, may be a compensable workplace injury as a disease. To be entitled to compensation, an injured worker must have contracted the disease or virus in the course of employment and the worker’s employment must be proven to be the main contributing factor to contracting the virus.

The recent introduction of Section 19B of the Workers Compensation Act 1987 makes presumption that workers who contract Covid-19 who work in certain types of employment or industries will be presumed to have contracted the virus at work or whilst working. Most of the presumed areas of employment are of front-line or essential workers.

A worker may also submit a workers compensation claim in respect of industrial deafness. An industrial deafness claim is for injuries caused by sound and pressure. This is ordinarily sustained over a period of time and is most common for workers who are employed in factories, the mining industry, trades and noisy workplaces.

Dust Diseases

A worker may also apply for Dust Diseases Care and compensation if they have been exposed to harmful dust in their workplace, or if they have been exposed to chemicals and hazardous substances. The relevant legislation for a Dust Diseases claim in NSW is the Workers’ Compensation (Dust Diseases) Act 1942 (NSW).

To be entitled to compensation in NSW, a worker must be diagnosed with a dust disease illness through employment in the workplace. Some of these include, but are not limited to:

• Mesothelioma
• Asbestosis
• Silicosis
• Coal dust pneumoconiosis
• Farmers’ lung
• Talcosis

A death claim may also be made by a dependant of a deceased worker in respect of a dust disease claim.

What Should I do If I Have Been Hurt at Work?

The process to making a claim for workers compensation, and the initial process, is as follows:

Step 1:

Notify your employer of your work-related injury or illness as soon as possible! You can notify your employer verbally or in writing, however, we recommend notifying your employer in writing.

Step 2:

You should ask your employer for the insurer’s name. The employer must provide the insurer’s name to you. If your employer does not, or cannot give a name, you can phone SIRA on 13 10 50 or email contact@sira.nsw.gov.au.

Step 3:

Your employer must ensure their insurer is notified within 48 hours of becoming aware of the work-related injury. This notification can also be made by the injured worker, or a representative, such as a doctor or union representative.

Step 4:

Attend your Nominated Treating Doctor (GP) and seek medical treatment. You will also need to obtain a SIRA Certificate of Capacity from your GP.

Step 5:

Give the original copy of the Certificate of Capacity to your employer, and retain a copy for your records.

Step 6:

Contact the team at Coutts to obtain legal advice as soon as possible. Even if a dispute has not arisen with the insurer, they may be additional compensation you are entitled to that you are unaware of, such as lump sum compensation or domestic assistance, and we can assist you with accurately completing your Claim Form.

Step 7:

Complete a Worker’s Injury Claim Form and forward the completed form to your employer and the insurer. Your employer has a duty to send the completed claim form to the insurer within 7 days of receiving it. The claim must be made within six months of the injury or accident (or within six months of you becoming aware of the injury). This time limit may be extended in certain circumstances.

But I Can’t Afford a Lawyer?

No problem! Many workers in NSW are entitled to have their legal professional fees and disbursements covered by the Independent Review Office (IRO). At Coutts, we have multiple IRO Approved Lawyers that provide you with comprehensive legal advice in relation to your workers compensation claim at no cost to you. At Coutts, we also offer No Win, No Fee agreements for injured workers not eligible to receive an IRO grant of funding. Contact our office today to see how we can help you!