Under the West Australian Workers Compensation and Injury Management Act of 1981, a worker is entitled to compensation for injuries sustained in the workplace. There are prescribed protocols that must be followed and complied with to access compensation.
How to Make a Claim
Any worker (full-time, part-time, seasonal, or casual) who is remunerated in substance for personal manual labour or services in Western Australia who has been injured in the course of his or her employment has the right to make a workers’ compensation claim in Western Australia.
If you have suffered an injury at work, the first thing you need to do is to notify you employer and then visit your general medical practitioner for a First Medical Certificate. This will verify the type of injury you have suffered and correlate that with it having been sustained at work. It will inform the employer and their insurer of the extent of your injury, your fitness for work, together with any recommendations for restrictions on work duties.
In the Western Australian workers’ compensation system, as an injured worker, you have the prerogative to choose the doctor, specialist, or physiotherapist who will examine and treat you. This is notwithstanding that fact that many large employers have their own preferred practitioners who they may attempt to channel you to. You need to ensure that your doctors, specialists, and other paramedical treatment providers are serving your best interests.
Practitioners who serve employer’s and insurer’s interests may be reluctant to refer you for necessary tests to cut and save costs on the claim, may certify you fit for work, or put you on a return to work or rehabilitation program that may work against your full and proper recovery of the injuries suffered.
Other medical practitioners may be practicing under a practice billing system where they cannot afford you the time necessary to hear and understand the issues you have and explain to you the best treatment options. You need to make sure that you choose good doctors and other paramedical practitioners. You are allowed to change your treating practitioners. The employer or insurer is entitled to send you for independent medical examinations with their own choice of doctors under the West Australian workers’ compensation system.
Besides the First Medical Certificate, you also need to fill out a workers’ compensation claim form and submit it to your employer along with the First Medical Certificate. The employer then has five days to lodge them with the insurer and the insurer has 14 days to respond. Do not delay in putting in a claim. You should submit a claim as soon as reasonably practicable after you suffer injury so that your rights are not prejudiced.
Not every claim is accepted. It can be declined or put on hold pending further investigation or medical reports that prove it. If your claim is declined or pended, you can file an application through the Workers Compensation Conciliation Service and the Workers Compensation Arbitration Service.
How Can a Claim Be Denied?
While the making of a worker’s compensation claim in Western Australia does not require a worker to prove fault on the part of the employer (it is a no-fault scheme), there are exceptions in the legislation to the coverage that is provided. Employers and insurers may attempt to rely on one or several of the following grounds to deny a claim:
That you wilfully and falsely represented yourself as not having previously suffered from the injury claimed at the time of seeking or entering employment.
That you were intoxicated at work, and the injury was attributable to the intoxication.
That you failed to wear safety equipment or clothing that was available from your employer without reasonable excuse.
That you were engaged in other serious or wilful misconduct that led to the injuries.
That your injury was sustained in a break from work , or that it did not happen during work hours.
That you did not report and make a claim for your injury within the 12 month statutory reporting period.
That your injury was due to degeneration, was congenital, or from a previous injury or disease that was not significantly contributed to by work.
That in the specific case of a psychological or stress related injury, your injury wholly or predominately arises from a category of excluded causes that are related to industrial or administrative action; such as dismissal, retrenchment, demotion, discipline, transfer, redeployment, not being promoted, reclassified, not being granted leave, or other benefit.
It is very important that you seek good specialist legal advice when any of these arguments are being put to you by the employer or insurer because there often are arguments of fact and law that can be advanced on your behalf that may still entitle you to benefits under the Workers’ Compensation Scheme.
What Workers’ Compensation Covers
Once your claim has been accepted by the insurer and your employer, you will be entitled to certain payments which include the following:
ü Medical Expenses – This includes expenses for medical treatment, physical therapy, and other treatments that are approved by your doctor. Chemist and travelling expenses can also be claimed. The expenses are limited to the compensation rates that are set by WorkCover WA. As such, you should make sure that your doctor also charges at the same rates or you may have to out of pocket expenses. You should keep a log of your travelling so that reimbursement can be claimed.
ü Wages – The amount should cover all of the days you would have been at work had it not been for your injuries. Your doctor should have certified these. The rate of your entitlement for wages may be affected after 13 weeks of payments depending on whether you were employed under an industrial award or agreement. Wages should continue until you return to work, the employer has obtained an order from Workcover to stop paying, or you have reached the limit of entitlements (called the prescribed amount under the legislation). If you receive notice from the employer or insurer that they intend to stop your wages, or you find yourself suddenly without wages, you have 21 days to bring proceedings at Workcover. You should see a lawyer to help you urgently.
ü Rehabilitation Expenses – This should cover the expenses of a rehabilitation provider who is assisting you with the return to work process. Rehabilitation providers should be working in your best interests, and you have the prerogative to chose your provider.
There are limits and caps to the entitlements. The entitlements can also be redeemed together with a lump sum under a schedule for permanent impairment within the legislation. There are many trips and traps that injured workers fall prey to in navigating though the complex provisions of the legislation that employers and insurers would exploit to their advantage.
Where the negligence of the employer is relevant, and you wish to pursue a common law claim, your rights must be protected before the termination date expires. This date may vary due to a variety of circumstances, such as when the claim form was initially lodged, and whether the claim was accepted by your employer, etc. We would recommend that you get legal advice as soon as possible after an accident to ensure that your rights are protected.
Soul Legal offers comprehensive legal advice and representation for injured workers in Western Australia who are entitled to workers’ compensation. We have been practicing the law since 1991 and have a solid reputation for aggressive representation as well as a successful track record when it comes to achieving positive results for our clients.
If you have made a workers’ compensation claim in Western Australia, having suffered from an accident and are disabled or unable to work because of it, get in touch with Soul Legal, the personal injury lawyers in Western Australia for an obligation free consultation today!
Director / Partner Soul Legal