The general advice provided below has been written to be useful to delegates/health and safety reps around Australia.
You will need to contact your Union for more detail. There are differences in the various Workers Compensation systems around Australia, as workers compensation and the legislation that covers it is a State/Territory responsibility, as is occupational health and safety. This means there are different rules and different levels of compensation according to where workers are employed, both geographically and whether they are Commonwealth Government employees (or now, self-insurers under Comcare).
- What is Workers Compensation?
- What is covered under Workers Compensation?
- How to claim Workers Compensation
- Final Points to Remember
It is very important that members are encouraged to seek the advice of the Union whenever they have any queries, or if something out of the ordinary happens. Many unions have specialist Workers Compensation Officers as well as access to union approved solicitors who will provide specialist and up to date advice. Union Assist is a service located at the Victorian Trades Hall Council in Carlton to provide help to union members with Workers Compensation problems - phone: 03 9659 3511.
- Workers Compensation is a system that provides compensation (wages while unable to work, medical and like expenses, and in some cases lump sum payments for permanent injury) to workers.
- All employees are covered for compensation for work injuries and/or illnesses, whether employed on a full-time, part-time, casual, permanent or temporary basis.
- Many self-employed contractors, owner-drivers, and out-workers working from home are also covered.
- In Victoria, the system is called "WorkCover". However people employed by the Commonwealth Government, or any of the Government Business Enterprises are covered by the system called "Comcare". You will need to check with your union for further advice.
- Workers Compensation covers injuries suffered at work, on lunch or other breaks, at work functions, attending training for work, or on any other activity connected with work.
- Diseases or medical conditions which have been caused by work, or made worse by work are also covered.
- Compensation can also be paid for some heart conditions, lung conditions, cancers, nervous conditions, stress, anxiety, occupational overuse injuries (previously known as "repetitive strain injuries") or dermatitis, but there must be adequate evidence that work was a significant contributing factor.
- Workers in most states/territories are no longer covered by the Workers Compensation system whilst travelling to and from work, but they may be entitled to compensation from the Transport Accident Commission if a vehicle was involved. For further information on this, call your Union.
- If the injury occurred whilst walking to or from work, or riding a bicycle to or from work, then contact the Union for advice as to other potential remedies.
The following is general advice for delegates/health and safety reps to help any of their members who may suffer an injury or work related illness. If there are any questions, contact your union. Make sure that they do the following things as soon as possible. The more quickly the claim is submitted to the employer, the more quickly it can begin to be processed by the insurance company - and this means the more quickly will the member begin to receive wages and have any medical expenses covered.
Advice to the member:
- All injuries/conditions must be reported to the employer. These must be recorded in the "Accident Book" or equivalent. This is a requirement: a worker's claim can be rejected simply on the basis that the worker did not notify the employer via an incident report within thirty days of becoming aware of a work-related injury. This applies equally when it is a non-physical injury, for example stress. The worker should get a copy of this report.
- The worker should visit their own doctor and give details of how the injury/condition occurred. Workers have the right to see their own doctor and it is advisable to do so in possible Workers Compensation cases. It is also important for workers to have their own doctor who knows them and their medical history. The worker has the right to choose their own treating doctor.
Note: if your employer asks the injured worker to go to another doctor (eg the company doctor) for any reason, contact your union immediately for advice.
- The worker must ensure that the treating doctor issues them with the appropriate Workers Compensation certificate. Note that this is not the normal type of certificate a doctor issues when the injury/illness is not work related.
- The worker must then complete the appropriate Workers Compensation claim form which they can get from a Post Office, the Union office, downloaded from the regulator's website, or sometimes their employers. All sections of the claim form must be filled in. The claim form includes a "medical authority" which the worker must sign.
- The worker should then take a copy of both the completed claim form and the medical certificate - for their own records.
- Both originals must be given to their employer who should sign all copies and return the worker's copy to them.
- If the worker does not need to take time off work, but is claiming medical expenses (eg doctor's visits), receipts need to be kept and a claim form must still be submitted. Advise the worker not to claim these expenses from Medicare - the condition could worsen and the worker may end up needing time off work. Putting in a WorkCover claim after this could be more complicated.
- The worker should find out from the employer the name of the insurance company that covers the workplace.
- If the employer will not accept the claim form, or cannot be located, the worker should contact the Union immediately for further advice.
- Only medical certificates in the prescribed Workers Compensation form will be accepted.
- The first certificate must be obtained from a doctor, and cannot be for longer than 14 days. Certificates for longer than 14 days will not be accepted.
- Once the Workers Compensation claim has been submitted, the worker must keep providing certificates from his or her treating doctor, physiotherapist, chiropractor or osteopath regularly - at intervals of no more than 28 days.
Processing the Claims:
- Once the Workers Compensation claim has been submitted, the law allows the employer 10 days to send it on to the insurance company, together with a completed employer form. Sometimes, however, employers take longer, even though they should not.
- The insurance company then has 28 days from the receipt of the claim to make a decision on whether to accept the claim or otherwise, and to inform the worker. This means that injured workers usually have to wait a month (or up to six weeks) before receiving compensation - even in cases where their claim is accepted "straight away".
- In order to assist in this decision, the insurance company may send the worker to a medical examiner. The worker, who must attend this appointment, should seek advice from his or her union. If there are any difficulties (for example taxi to get there, unsuitability of appointment time, or the need for an interpreter) the worker must contact the insurance company to organise this - they can't just not turn up.
- Also during this time, the insurance company may send an "assessor" to "help along the claim". The assessor (who may be a fraud investigator and works for the insurance company, not the Workers Compensation Authority) may visit the worker or the workplace. No one is under any legal obligation to talk with the assessor. In fact, the VTHC recommends that the worker does not talk with him/her at all. We have heard of cases where certain assessors have taken comments out of context, or have made an unfair judgement, and this has been used to dispute or deny the compensation claim. If you or the worker has any doubts, ask the assessor to contact the Union. If you have any concerns regarding assessors contact your Union.
If the Claim is accepted:
- The worker will be notified by mail, and will receive most of their pre-injury average weekly earnings (PIAWE). In Victoria under WorkCover, the amount received for the first 13 weeks is 95% of PIAWE, including regular shift penalties/allowances and even overtime, in some circumstances. This applies for the first 12 months. However, there are on-going issues between the unions and the insurance companies regarding overtime and shift penalties. Check with your union for more advice.
- The level of payments changes after 13 weeks, also depending on the severity of the injury/condition. It is important to check with your Union.
- Check your Award or Agreement, as there is usually a "Make-up Pay" Clause that specifies that the employer must make up the difference for a certain period of time.
- During the time the worker is on Workers Compensation, he/she may receive letters from the insurance company with instruction to visit more doctors (or specialists) - they must attend. Again, if they have difficulties, they should contact the insurance company. If the worker feels that he/she is being asked to visit too many doctors, they should contact their Union. Workers are entitled to be treated with courtesy and respect during these examinations. If the member is unhappy with their treatment of you, they should contact the Union.
- Severance/redundancy pay may affect Workers Compensation payments. Also, being on compensation may affect Superannuation. If the worker has any concerns, they should contact their Union.
- If the claim has been accepted, the worker may also be eligible for other types of compensation. In cases of permanent disability, the worker may be eligible to a lump sum payment under the compensation scheme. Also, if there was some negligence on the part of the employer involved, there may be the possibility of a Common Law claim. For further information and advice, contact your Union. If there is a possibility that the member is eligible for either of these, he/she will be referred to solicitors.
- The VTHC recommends that if a member wishes to consult a solicitor at any time, they should contact their Union first.
If the Claim is not accepted, or payments are cut off or reduced:
- The member should receive notification of any of the above by mail, but this does not always occur. The member should contact the Union immediately. They will make sure that the proper steps are taken to dispute the decision.
- Again, we recommend that the member see the Union first - they may then be referred to a Union solicitor where necessary.
Rehabilitation and Returning to work:
- The member has the right to rehabilitation assistance, for example, expert advice to improve their potential for activities including work.
- The WorkCover legislation provides a worker with protections once they are ready to return to work after an injury, or when they are back at work on modified duties.
- The employer has obligations with regard to return to work - these may vary in different states, however. Check with your union. More information for Victorian workers on the WorkSafe website.
- If the worker has any concerns about their return to work or rehabilitation program, he or she should check with the Union.
- In Victoria, the employer has an obligation to keep the worker's position open for at least 12 months, and to offer appropriate employment during this 12-month period. There are mechanisms for the worker to lodge a formal complaint if this does not happen.
- All accidents injuries or conditions must be reported and recorded in the accident book at your workplace - even they don't involve time off work.
- Claims for Workers Compensation should be submitted as soon as possible, and certainly within 30 days after an injury or after a worker becomes aware of any condition.
- Make sure the doctor provides the correct Workers Compensation certificate.
- The Union should be contacted immediately if the worker receives any papers from either the insurance company or the Workers Compensation Authority.
- No one should sign anything or talk with any investigators/assessors. Call the Union for advice and assistance.
- The worker should contact the Union if there are any problems with payments.
- The worker should make and keep copies of ALL documents.
- The worker should not go to a solicitor down the road without contacting the Union first - it could end up being costly both in terms of money and the success of the claim.
- The WorkSafe Victoria has developed specific material on the claims process:
- More information in the Injuries and Claims section the WorkSafe Victoria website.
- From the UK's Health & Safety Executive (HSE): a guide for union safety representatives to assist in reducing sickness absence in the workplace. The 11 page leaflet Working together to prevent sickness absence becoming job loss can be downloaded on the HSE website [pdf]. The advice includes actions union representatives can take to show employers how they can support workers in getting them back to work.
Last amended January 2015