The Law Handbook 2024

946 Section 10: Accidents, insurance and compensation The types of injuries covered for non-economic loss are set out in the above sections. Injuries such as spinal injuries, limb injuries and loss of senses including hearing and sight are covered. Legal advice should be sought as to the types of injuries that are covered by these provisions. However, any partial loss or impairment, severe facial disfigurement or severe bodily disfigurement is not covered by section 221. Compensation under sections 211, 212 and 213 is calculated by using the 4th edition of the American Medical Association Guides (‘ AMA Guides (4th edn) ’). However, there are specific guidelines for the assessment of psychiatric impairment, hearing loss and gradual process injuries. Such compensation is not payable for secondary or consequential psychiatric impairment, e.g. as a result of a physical injury (s 56). Only ‘primary psychiatric’ injuries are covered (e.g. where a worker suffers a psychiatric injury as a result of a specific incident, such as an explosion). The distinction between ‘primary’ and ‘secondary’ psychiatric injuries is complex. It is important to get legal advice about this point (see Chapter 2.4: Legal services that can help). Claims under sections 211, 212 and 213 generally must be above the minimum threshold of 30 per cent in psychiatric cases and 10 per cent in non-psychiatric cases. The amount of compensation varies according to the percentage degree of impairment under sections 211, 212 and 213 and certain prescribed amounts for nominated injuries in section 221. The maximum amount payable for injuries on or after 1 July 2023 is $713780 for sections 211 and 212, and $351700 for section 221. Settling a claim outside court A worker and the self-insurer or WorkSafe may agree to ‘settle’ a compensation claim outside the court. In addition, the WIRC Act allows for a binding settlement to be made at a conciliation hearing at the Accident Compensation Conciliation Service, which can issue an ‘outcome certificate’ (s 296(3)). A worker should not make such an agreement without obtaining proper legal advice. The amount of settlement will depend on a number of factors in any particular case; for example, doubts on the relationship between the injury and the employment and differing medical opinions on capacity to work or length of incapacity. Any claim arising out of the death of a worker in which a dependant is not legally represented or is a minor or under a disability must be approved by the court (s 235). Making a claim Procedure Under the WIRC Act, a claim for compensation is commenced by serving a claim form, usually on the employer. Notice of injury and/or a claim for compensation should be given as set out above. If the claim is for weekly payments, a medical certificate in the special form prescribed by the WIRC Act must accompany the claim form. The certificate must be from a medical practitioner, and must certify incapacity for work and the nature of the injury that is the cause of that incapacity. Generally, it will certify incapacity for no more than 28 days. It is a criminal offence for an employer to refuse to receive a claim for compensation or dismiss a worker from employment simply because the worker has given notice of, or taken steps to pursue, a claim for compensation (s 575). Also, employers must forward claims for compensation to WorkSafe within 10 days of receiving the claim; they may face financial penalties if this is not done. WorkSafe or a self-insurer must generally give written notice of a decision to accept or reject a claim for weekly payments within 28 days of receiving the claim. If this is not done within 28 days, the claim will be deemed to have been accepted and weekly payments must be commenced (s 75(1)). All claims for compensation must also include a medical authority, signed by the worker, allowing WorkSafe and others to obtain medical information from the worker’s doctors and other medical providers relevant to the worker’s claim. New employees can be required by an employer to give details of any pre-existing injury or disease of which they are aware. If there is a failure to disclose or if false and misleading information is given, the employee will not be able to claim compensation involving that pre-existing injury or disease (s 41). However, such a requirement by an employer may infringe Commonwealth Government anti- discrimination legislation. A worker should not accept advice other than legal or trade union advice. The rejection of liability by the employer or WorkSafe does not mean that the worker does not have a valid claim.