Workcover Legislation by State

It is extremely important that all injured folks out there remember at all times that all our Australian states and territories, and the Commonwealth have legislated for workers compensation, meaning that every state as well as the Commonwealth (Comcare) have a different workcover law!

All Australia employers are required -by law-to have workers compensation(workcover) insurance. Large employers in some states may become self-insurers which means that they bear the costs but also the risks of their own injury (illness) claims. Regardless of which particular insurance scheme they are in, all employers (and dare we say politicians and governments) want to keep their workcover insurance premiums as low as possible.But this has a direct and often detrimental relationship to our health and safety as an employer’s injury claims record(s) impacts on its premiums….It’s all about money. (There are strict criteria that employers must meet before WorkCover will approve a self-insurer’s licence. We’ll spare you the details, but for those interested these criteria are outlined on the WorkCover Authority website for each state.)

This section provides a short-ish overview (on the “open me”) of the workcover legislation in each state/ jurisdiction and is regularly updated. Needless to say that we encourage you to study the relevant workcover legislation in your state (remember knowledge is power!) and we have provided relevant links to all the states’ workcover as well as health and safety (WHS) legislation and regulation for this purpose.

Safe Work Australia’s Comparison of workers’ compensation arrangements in Australia and New Zealand (2013) is also a very useful document (pdf) for a brief description of your state or territory’s workcover scheme, incl. benefits, appeal process etc.

[link to Safework page>>]

workcover-legislation

Workers’ Compensation Authorities

Here’s a quick reference to Occupational Health and Safety (OHS or WHS) and WorkCover Authorities to make your life easier.

 

Legislation Databases

Let’s start with some useful resources and references…

 

Workcover legislation by state

Outlined below are the relevant Acts and Regulations in each state, as well as an overview of the state’s workcover system. To read more about the workcover system in each state, please click on “Read more…” under each state/territory.map-au

Victoria (Vic)

New WorkCover laws in Victoria will be, supposedly, simpler from 1 July 2014 — The new Victorian Workplace Injury Rehabilitation and Compensation Act 2013 (the WIRC Act) combines the Accident Compensation Act 1985 and the Accident Compensation (WorkCover Insurance) Act 1993, into a single Act ( the WIRC Act) that is supposedly simpler and easier to use. (Read article)

What’s more, the “WorkSafe Victoria” brand will be discarded officially on 1 July 2014, and replaced with the (old) regulator’s legal name – the Victorian WorkCover Authority (VWA).

However, in January 2015 the VWA was changed back to WorkSafe Vic – helooo!

As of 1 July 2014, new legislation will regulate the entitlements of Victorians injured at work to compensation and assistance.

The Workplace Injury Rehabilitation and Compensation Act 2013 (the WIRC Act) outlines the scope of benefits that can be claimed for injuries suffered at work on or after 1 July 2014. Injuries occurring prior to 1 July 2014 will continue to be regulated by the Accident Compensation Act 1985. Where an injury has been sustained because of the nature of a worker’s duties or over the course of their employment, they will be subject to the WIRC Act where they have submitted a claim after 1 July 2014.

The benefits available to injured workers does not change between the WIRC Act and the former regime.

The major difference between the two laws is the renumbering of sections governing entitlements under the system.

However as we pointed out, with re to the ‘no benefit’ changes’ : an injured worker will be required to use occupational rehabilitation services, participate in assessments and participate in interviews “to the extent it is reasonable to do so” rather than the current standard of merely to “actively participate” and “co-operate”.

Arguably, the re-written Act provides only more opportunity for cessation of payments. i.e. where injured workers are not “genuinely” pursuing return to work.

See more at http://www.worksafe.vic.gov.au/laws-and-regulations/accident-compensation

All Legislation and Regulations

Read more about Workcover in Victoria

“Less complex workcover laws” are now awaiting assent in Victoria

Legislation to reduce the complexity (unreadability) of Victoria’s workcover laws for employers and workers alike has passed both houses of Parliament in late 2013 (Nov) and is now implemented.

The Workplace Injury Rehabilitation and Compensation Bill 2013 (Vic) consolidates the Accident Compensation Act 1985 and the Accident Compensation (WorkCover Insurance) Act 1993 into a single Act that is commenced on 1 July 2014.

Assistant Treasurer Gordon Rich-Phillips said making the current workcover legislation, which is almost 30 years old, “simpler and easier to use” for all was a “significant achievement”.

‘The new legislation is presented in a logical and sequential order with visual aids, making it easier for all users to better understand their legislative rights and obligations,’ he said.

‘The re-write was also undertaken on a ‘no benefit change’ basis and will continue to offer all existing entitlements and benefits currently available to injured workers and their families.’

Rich-Phillips said the new legislation will reduce red tape and offer a new right for employers to have their WorkCover premiums independently reviewed.

WorkSafe Victoria has published further information, including tables comparing the new and old Vic workcover legislation.

WorkSafe Victoria is the relevant  agency (the authority) responsible for administering the Victorian workers’ compensation legislation, and for overseeing its agents, the workcover insurers. WorkSafe Vic also provides both an inspectorate and an “advisory service”.

The legislative basis for the Victorian workers’ compensation scheme is basically provided and guided by the following Acts and Regulations:

The Accident Compensation Act (ACT) provides for “income support”- aka as weekly payments- for workers who become  injured (or ill) due to their work and for the management (i.e. medical treatment, rehabilitation etc.) of those work related injuries or illnesses.

Employers (our bosses/companies) are, by law,  required to pay workcover insurance premiums, which are supposed to safeguard workers who become injured or will at work. These insurance premiums are based or calculated on a number of factors such as the employers:

  •  total amount of wages, salaries, superannuation and certain benefits paid (aka as Remuneration)
  • the Workplace Industry Classification (WIC) for the industry in which the employer operates and based on that industry’s claims experience (i.e. a high risk company will pay higher premiums than a low risk company in terns of potential for injuries)
  • the claims Experience – for medium and large businesses (i.e. the amount of injuries/illnesses)

The Victoria workcover scheme also provides coverage for self-insurers. Self-insurers are usually large corporations with the means and the organisational structure to manage their own risk and claims.

In Victoria, injured workers may be compensated for a new work-related injury or illness, or an aggravation of a pre-existing injury or illness; and may be entitled to:

  • Weekly benefits
  • Reasonable medical and like services
  • Impairment benefits
  • Common law benefits
  • Death benefits

The current rates of workcover benefits (i.e. weekly pay, lumpsums etc.) are listed on WorkSafe Vic’s website.

A little word about Return to work

It is compulsory – by law- that all Victorian employers  prepare a Return to Work Plan and nominate a Return to Work coordinator for every injured/ incapacitated worker. The return to work plan/programme must be prepared no later than 10 days after either the injured worker’s claim being accepted; or the employer becoming aware that the injured worker’s period of incapacity is likely to exceed 20 days- whichever comes earlier.

Also, employers with a payroll of more than $1 million [per annum] must – at all times- by law,  have in place a Risk Management Programme and an Occupational Rehabilitation Programme.

However, employers with a payroll of $1 million or less must put in place a Risk Management Programme and an Occupational Rehabilitation Programme when it is has been established that the (or an)  injured worker’s period of incapacity is likely to be more than 20 days.

Given that our humble Diary of a Workcover Victim is based in Victoria, a hell of a lot is covered about the (evil) Victorian workcover system in detail on other pages.

New South Wales (NSW)

All Legislation and Regulations

Read more about Workcover in NSW

WorkCover NSW is the relevant  agency (the authority) responsible for administering the NSW workers’ compensation legislation (Acts and Regulations), and for overseeing its agents, the workcover insurers.

The draconian NSW WORKERS’ COMPENSATION LEGISLATION AMENDMENT ACT 2012

In June 2012, the NSW (Barry O’Farrell) Government put through a bill to amend the Workers Compensation NSW legislation which dramatically reduces, or in some cases, destroys injured workers’ entitlements to benefits under the NSW Workers Compensation Scheme.

Worker’s entitlements under the legislation fall basically within four (4)  broad headings:

  1. Entitlements to Weekly Payments
  2. Entitlements to Payment of Medical Expenses
  3. Entitlements to Lump Sum Compensation for Permanent Impairment and Pain & Suffering
  4. Access to Common Law where their Employer was Negligent

Taking each of these in turn:

1. WEEKLY PAYMENTS

1.1 Worker’s entitlements prior to the amendments

Under the previous legislation injured workers were entitled to weekly payments of compensation at what was known as their current weekly wage rate (normal flat earnings) for a period of 26 weeks from the date of injury. Thereafter the entitlement varied depending on whether the worker was totally or partially incapacitated.
If the injured worker remained totally incapacitated they were entitled to weekly payments at what was known as the statutory rate which as at the date of last indexation was $432.50 pw for a single worker. The amount was increased if the worker had dependants. The injured worker was entitled to this amount until they reached a year from the time they would have otherwise reached the Commonwealth retirement age.

If the injured worker was partially incapacitated after the first 26 weeks, or subsequently became partially incapacitated, they were entitled to weekly payments representing the difference between what they would have been likely to earn had they not been injured and what they were now able to earn in some suitable employment up to a maximum of the applicable statutory rate. Again, this entitlement continued generally till their 66th birthday (retirement) or until they recovered or obtained employment where they were able to earn more than they would have if they had not been injured.

Provisions existed for partially incapacitated workers to be paid an amount equivalent to 80% of their current weekly wage rate for up to 12 months if the employer failed to provide suitable duties when requested.

1.2 The changes

The amendments in respect of weekly payments apply whether or not the worker was injured or made a claim for compensation before or after 19 June 2012.

The changes provide that weekly compensation will be payable depending on the period post injury:

  1. Week 1-13
  2. Week 14-130
  3. After week 130
  4. After 5 years

In respect of the first 13 weeks a totally incapacitated worker is entitled to 95% of their average weekly earnings with a cap of $1,838.70.

A partially incapacitated worker is entitled to 95% of their average weekly earnings less an amount calculated
as representing their ability to earn.

During weeks 14-130 a totally incapacitated worker is entitled to 80% of their average weekly earnings.

A partially incapacitated worker who is working not less than 15 hours per week is entitled to 95% of their average weekly earnings less an amount for their ability to earn.

A partially incapacitated worker who is not working at least 15 hours per week is entitled to 80% of their average weekly earnings less an amount for their ability to earn.

After week 130 an injured worker’s entitlement ceases unless:

  1. The insurer assesses the worker has no capacity to earn and that this situation is likely to continue indefinitely. In that situation, the worker continues to be entitled to 80% of their average weekly earnings.
  2. If a partially incapacitated worker is working at least 15 hours per week and is earning at least $155.00 pw and has been assessed by the insurer as being unlikely to be able to increase their earnings beyond that point, they will be entitled to 80% of their average weekly earnings less an amount for their ability to earn.
  3. After 5 years: no entitlement to weekly compensation exists unless an injured worker continues to satisfy the test that applies after week 130 and in addition to this has been assessed as having a 20% or greater whole person impairment.

1.3 The Transitional Provisions

The transitional provisions provide that insurers are to arrange work capacity assessments for existing recipients (workers injured or who made claims prior to the 19 June 2012) within 12 months of the date of the changes taking effect.

This can be done at any time within the 12 months. The changes set out above then apply to existing recipients
at the conclusion of a period of 3 months from the time the work capacity assessment is held. This means that all existing recipients of weekly compensation will become subject to the time limit provisions under the new legislation within a period of 15 months from 19 June 2012.

The vast majority of injured workers who have previously understood they were entitled to weekly compensation until they reached retirement age will find their entitlement to weekly compensation will cease 130 weeks after they become subject to the new legislation.

1.4 The Assessment of Ability to Earn and the Review Process

Suitable employment is defined in the changes as being work for which the worker is currently suited regardless
of whether the work or the employment is available, whether the worker or employment is of a type or nature that it is generally available in the employment market or with regard to the worker’s place of residence.

The Courts have previously been able to take these factors into account.

The changes provide that a decision as to the worker’s capacity to earn is made by the insurer.

A worker unhappy with the insurer’s decision is required to within 30 days seek an internal review by the insurer. If unhappy with the internal review the worker is then entitled to within a further 30 days seek a review either by the
Workcover Authority or by a (fairly) newly created officer known as the Independent Review Officer (WIRO). The Workcover Authority can also conduct a merit review of the insurer’s decision.

The Independent Review Officer (WIRO) may only review the insurer’s procedures in making the work capacity decision and cannot review any judgment or discretion exercised by the insurer. The Workers Compensation Commission is specifically excluded from jurisdiction in relation to disputes concerning work capacity assessment.

2. MEDICAL EXPENSES

Changes in respect of medical expenses apply whether the injury occurred before or after 19 June 2012.

Prior to the changes an injured worker was entitled to payment of reasonable medical and therapeutic expenses for the rest of their life.

Under the changes no medical expenses are payable in respect of treatment provided more than 12 months after the claim for compensation was made unless the injured worker continues to receive weekly compensation.

A worker injured prior to 19 June 2012 who is not presently receiving weekly compensation will no longer be entitled to payment of their medical expenses after 19 June 2013.

If a worker continues to receive weekly payments of compensation for a period of in excess of 12 months the entitlement to medical expenses ceases 12 months after the date weekly payments cease. There will be few, if any, injured workers still receiving payment of their medical expenses 5 years from now.

The legislation also provides that medical expenses are not payable by the insurer unless prior approval is obtained from the insurer. The legislation provides that Workcover guidelines can make some exemptions to this but that the guidelines can also define the nature of the treatment that is considered reasonably necessary and of particular concern is that the Workcover guidelines can set out standard treatment plans for particular injuries.

3. LUMP SUM CLAIMS

Prior to the changes an injured worker was entitled to claim lump sum compensation where an injury has caused them to suffer a permanent impairment. If the permanent impairment was greater than 10% they were also entitled to claim an amount for pain and suffering. The amount for pain and suffering was assessed having regard to the subjective effect on the worker’s life. If a dispute arose in respect of this the Workers Compensation Commission could determine this amount.

The changes provide that in respect of a claim for compensation made after 19 June 2019  no lump sum compensation is payable if the injured worker has suffered a whole person impairment of less than 10%.

Claims for pain and suffering have also been abolished.

In particular, the legislation provides that only 1 claim for lump sum compensation can be made. This means that an injured worker is unable to make any further claim should their condition unexpectedly deteriorate.

Workers are only entitled to obtain 1 assessment as to the extent of their impairment.

This disadvantages injured workers who have suffered injuries to multiple body systems such as a worker who has a severe spinal injury who also experiences bowel and/or bladder dysfunction.

4. WORK INJURY DAMAGES CLAIMS

Injured workers who are able to establish that their employer had been negligent and who have been assessed at having a 15% or greater whole person impairment may claim work injury damages. Such a claim, if successful, entitles the injured worker to recover their economic loss up to the time of their retirement although a successful claim extinguishes the injured worker’s entitlement to ongoing medical expenses.
Surprisingly, the changes have left this entitlement essentially untouched.

5. MISCELLANEOUS

5.1 The Disease Provisions:

An injured worker was previously able to show that they had suffered an injury for the purposes of the Act if they could show that work had aggravated, accelerated or exacerbated an underlying disease or condition from which they suffered.

The provisions have now been amended to provide that a worker must show employment was the main contributing factor to the aggravation, acceleration or exacerbation.

Many older workers suffer aggravations of pre-existing osteo-arthritic changes when they suffer a fall or other injury at work. These cases will (and are) now most likely be excluded.

5.2 The journey provisions

The journey (travel) provisions previously provided that workers were covered on their way to or from work.

Workers are now only covered if they can show there was a real and substantial connection between their employment and the accident or incident on the journey. Again, most are excluded.

 

The workcover NSW legislations

WorkCover NSW is the relevant  agency (the authority) responsible for administering the NSW workers’ compensation legislation (Acts and Regulations), and for overseeing its agents, the workcover insurers.

As in all States, in NSW there are also a number of Acts and Regulations which regulate the workers compensation/workcover in NSW for employers (companies/bosses) and employees (workers).

The Acts in NSW

  1. Workers Compensation Act 1987 -incl the amended 2012 version
  2. Workplace Injury Management and Workers Compensation Act 1998

These two (2) Acts together form the foundation of the workers compensation (and injury management) system in New South Wales.

Both Acts basically control and regulate the contributions of employers into the compensation system (via premiums) and the benefits which are paid to injured and ill workers. The treatment of work injuries and illnesses, and their management (i.e. rehabilitation), are also provided for in these Acts.

Payment(compensation) for permanent impairment; death “benefits” and payment for reasonable medical (and like) treatment and other related expenses, are basically under the power of this legislation.

Then there is also the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987; which makes available workcover entitlements for injured volunteer fire fighters (i.e.  injured fighting a bush fire), and for emergency service workers as well as rescue association workers who are injured while carrying out “authorised activities”.

NSW also has a Workers Compensation (Dust Diseases) Act 1942, which provides for the compensation of people (and their dependents), who are unlucky enough to become disabled due to a dust disease (i.e asbestos cancer).This Act comprises of the Workers Compensation (Dust Diseases) Fund and the Dust Diseases Board which administers the (Dust Diseases)Fund.

Regulations

The NSW Workers Compensation Regulation 2010 is a Regulation in NSW, detailing the “administration of the workers compensation system” which includes things like premiums (paid by the employers), benefit rates, forms and more forms, administration and bureaucracy, and something called the “Premium Discount Scheme”.

Workplace Injury Management and Workers Compensation Regulation 2002

Workers Compensation (Bush Fire, Emergency and Rescue Services) Regulation 2007: this Regulation basically outlines the emergency services workers who are covered by the Act, and the ‘authorised activities’ are covered by the Act.

South Australia (SA)

sa_newspic2953From 1 July 2015, new legislation will be implemented in the form of a new Act, the Return to Work Act, 2014. This will replace the existing Workers Rehabilitation and Compensation Act,1986. WorkCover will be known as ReturntoWorkSA.

The main emphasis of the new Act is in its title; WorkCover’s thrust in introducing this legislation is to provide early intervention for both workers and employers to support early and safe return to work of injured workers wherever possible. This is aimed at promoting the health benefits of working, recovering from injury and returning to work or being restored to the community wherever possible.

You may think so what is new, this has always been the goal for injured workers?

This Act introduces many powerful changes that will impact on both workers and employers.

Find more articles about WorkCover SA

All Legislation and Regulations

Read more about Workcover in SA

The newly re-elected SA Labor Government has announced that legislation to overhaul state SA WorkCover laws will be tabled in Parliament before July 2014, with the aim being to roll out a significantly improved scheme by mid-2015.

The key principles guiding the reform were the focus on A new recovery and return to work system for South Australians, a policy paper released by the Government in January this year.

Premier Weatherill said the reforms would “save businesses $180m in annual premiums”, while providing injured workers who have been let down by the scheme in the past with the best possible return to work outcomes. (Again, read between the lines!).

The Minister for Industrial Relations, John Rau said the new bill would introduce:

A legal distinction between seriously injured and less-seriously injured workers that includes:

  • increased compensation for seriously injured workers
  • a capped scheme for less seriously injured workers with better support to return to work sooner;
  • Access to common law;
  • Greater flexibility for injured workers to exit the scheme; and
  • A better dispute resolution approach with payments available to workers during disputes.

….

WorkCover SA is the authority in charge of administering the workers compensation and rehabilitation scheme for South Australia.

The legislative foundation for the South Australian workers compensation scheme is provided by the following main Act and Regulation:

  1. Workers Rehabilitation and Compensation Act 1986
  2. Workers Rehabilitation and Compensation (General) Regulation 1999 (Note that this is the main regulation and that there are  a number of other related regulations which deal with specific matters such as workcover claims and registration, disclosure of information, dispute regulation, reviews and appeals, rehabilitation,…)

Like all other sates’ schemes, the SA Workers Rehabiliation and Compensation scheme ‘aims’ to provide effective rehabilitation of disabled/injured workers and ‘manage’ their early return to work, as well as provide a ‘fair’ compensation for work-related disabilities/injuries/illnesses. They also aim  to reduce the incidence of work-related accidents and disabilities/injuries and reduce litigation and adversarial ‘contests’ to the maximum extent… as if!

A SA injured/ ill worker whose workcover claim is accepted may receive he following benefits:

  • income maintenance payments (aka as weekly payments)
  • medical and like costs related to the work injury or illness, including diagnosis, treatment and recovery
  • a lump sum compensation payment for non-economic loss (permanent disability): Workers who suffer a permanent disability or permanent loss of function of a part of their bodies are basically entitled to lump sum payment/compensation. The assessment of permanent disability/impairment is made by a medical practitioner.A lump sum payment is also made to the dependents of a deceased worker plus funeral expenses. In addition weekly benefits are payable to the worker’s dependents of up to 100% of the deceased worker’s average weekly earnings.

WorkCover SA also contracts so called “vocational rehabilitation specialists” to provide rehabilitation and return to work ‘services’ for injured/ill workers.

All SA injured worker entitlements and benefits are listed on the WorkCover SA website.

Like in all states, the SA Worekers compensation and Rehabilitation Act also provides for self insurers. Employers may self-insure if they have the financial capacity to meet their claims (usually at least $50 million of net assets). They must meet the administrative and financial criteria set out by WorkCover SA in order to meet the criteria. Self-insurers remain bound by the SA Act and must provide full benefits as set out in that Act.

Just as in all other states, SA employers also have certain legal obligations:

  • registering with WorkCover as an employer
  • paying of the required employer levy (premium)
  • reporting of any injuries which occur at their workplace when they occur: Employers are actually given a financial incentive to report claims (workcover injuries) within 48 hours: if they do so, they are not required to pay the first two weeks of weekly payments!
  • paying the first 2 weeks of income maintenance (aka weekly pay) to an injured worker
  • provide of a safe and healthy work environment; and
  • rehabilitating and returning to work of injured/ill workers: The SA WRC Act provides that the employer must provide alternative duties if reasonably practicable. The employer must work in cooperation with the claims agent, rehabilitation provider and the injured worker’s treating doctor to assist the worker’s return to work.Employers with 30 or more workers are required to appoint a rehabilitation and return to work coordinator who will manage the rehabilitation/return to work of injured workers.

Queensland (QLD)

All Legislation and Regulations

Read more about Workcover in QLD

Queensland’s recent workcover law reforms: summary

WorkCover Queensland has issued a helpful summary of recent (Oct 2013) changes to the state’s workers compensation scheme introduced by the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013 (Qld).

The 2 page document outlines the objectives of the new Act, which received royal assent, as well as the provision, all of which are now in effect. These include:

  • the introduction of a common law claims threshold of greater than 5 per cent whole person impairment
  • employment to be ‘the major significant contributing factor’ for psychological claims
  • employers can seek pre-employment disclosures from workers and obtain their claims history
  • regulation of the scheme will be undertaken by the Office of Fair and Safe Work QLD (OFSWQ)
  • worker fraud penalties to be increased and all fraud cases to be prosecuted by the OFSWQ
  • insurers must ensure common law claimants have access to return-to-work programmes.

And, yep, believe it or no, apparently these changes will protect businesses from ‘outlandish claims and skyrocketing premiums’,said Bleijie (WTF).

Q-COMP  is the Workers’ Compensation Regulatory Authority of Queensland and is the regulator of the Queensland workers’ compensation scheme, a separate and autonomous statutory authority. Both the monitoring or overseeing  and assessment of Q-COMP and WorkCover Queensland is done by the Qld Department of Industrial Relations, Workplace Health and Safety Division.

The legislative foundation for the Queensland  workers compensation scheme is provided by both the:

  1. Workers’ Compensation and Rehabilitation Act 2003
  2. Workers’ Compensation and Rehabilitation Regulation 2003

WorkCover QLD manages the workers compensation fund, except for the self-insurers. Like in all other states, self-insurers are usually large corporations with the means ($$$) and the organisational structure to manage their own risk and injury claims.

Employers are legally liable to compensate workers (and others such as dependents) for any injuries sustained by them.

Employers must be insured (can be self-insurerd) and they must report any potentially all compensable injuries to WorkCover QLD. They must also report to WorkCover if a worker requests compensation for an injury and also if the employer pays a worker an amount for any injury.

Under the QLD Workers’ Compensation and Rehabilitation Act 2003 workers compensation benefits are provided for workers  who suffer workplace injuries, illnesses or those who die.

The Act provides for:

“(a) compensation;

(b) regulation of access to damages;

(c) employers’ liability for compensation;

(d) employers’ obligation to be covered against liability for compensation and damages either under a WorkCover insurance policy or under a licence as a self-insurer;

(e) management of compensation claims by insurers;

(f) injury management, emphasising rehabilitation of workers particularly for return to work;

(g) procedures for assessment of injuries by appropriately qualified persons or by independent medical assessment tribunals;

(h) rights of review of, and appeal against, decisions made under this Act.” (sec 5(2))

The Workers’ Compensation and Rehabilitation Regulation 2003 provides the operational detail of the scheme in relation to insurance; compensation; rehabilitation; damages and costs.

Current rates and benefits of workers compensation benefits in QLD are listed on the QComp website.

If a worker suffers a work-related injury which results in a permanent impairment, s/he may be entitled to a lump sum in compensation.

If, as a result of the injury, the worker dies, his or her dependents may also be entitled to claim for compensation and damages.

All employers must have a rehabilitation policy and procedure in place for each workplace. They are required to provide rehabilitation to a worker who has sustained an injury, for the period for which the worker is entitled to compensation. The rehabilitation must also be of the required standard.

Of important note is that injured workers must ‘satisfactorily participate’ in rehabilitation (this is applicable in all states). Should they fail or refuse to do so without a reasonable excuse, their workcover payments can be suspended or terminated.

An accredited rehabilitation and return to work coordinator  is mandtory for employers in the following circumstances:

  • For workplaces are in a high risk industry, with wages in QLD for the preceding financial year of $1.981 million. (These are listed in Schedule 5A to the Workers’ Compensation and Rehabilitation Regulation 2003)
  • If their QLD wages bill for the preceding financial year is more than $6.507 million (indexed).

The RRTWC must be based in QLD and the employer may use the same RRTWC for more than one workplace, if the person can reasonably perform the role for each workplace.

It is illegal for an employer to dismiss a worker within 12 months of the injury, solely or mainly because the worker is not fit for employment in a position because of the injury.

Australian Capital Territory (ACT)

All Legislation and Regulations

Read more about Workcover in ACT

WorkSafe ACT is the relevant government agency responsible for administering this legislation.

The WorkSafe ACT website provides all the relevant information on the Territory’s workcover scheme.

The legislative foundation for the Australian Capital Territory (ACT) worker’s compensation scheme is the Workers Compensation Act 1951.

WorkSafe ACT provides both the inspectorate and an advisory service. The full text of the legislation (law) can be found here:

  1. Workers Compensation Act 1951
  2. Workers Compensation Regulation 2002

The Workers Compensation Act provides for income support (aka weekly payments) for injured/ill workers and for injury management.

The scheme only covers private sector workers in the Territory (which means it does not cover workers of the Commonwealth government).

The ACT scheme is privately underwritten, with ‘approved’ insurers offering workers compensation coverage to ACT employers. A workers compensation insurance policy is compulsory for all employers. However, the relevant Minister may exempt an employer from maintaining a workers’ compensation policy with an approved insurer if they instead satisfy certain conditions/criteria for becoming a self-insurer.

The Default Insurance Fund (DI Fund) provides workcover benefits to all privately employed workers who suffer a work-related injury or illness, in the situation where their employer did not hold a compulsory workers compensation policy; or the insurer has collapsed or is unable to meet the costs of claims. The DI Fund started on 1 July 2006.

Injured/ill workers may be compensated for: loss of weekly income; permanent injuries; medical treatment, damage and other costs; and for death. Workers are entitled to compensation for injuries, disease or aggravation of an injury/disease which arose: during the course of employment; by any incident arising out of employment; on a journey travelling to or from work.

The current indexed workers compensation benefits schedule is available on the WorkSafe ACT website.

Western Australia (WA)

July 2014 update: Maximum workers’ comp payments are  increasing in WA: The maximum amount an injured worker can receive in weekly payments and loss of earnings, during the life of a compensation claim, will increase by just over 3% from $206,742 to $212,980 on 1 July 2014. View variations in all types of workers’ compensation payments for the next financial year.

All Legislation and Regulations

Read more about Workcover in WA

WorkCover WA is the authority charged with administering the workers compensation and rehabilitation scheme for Western Australia. It’s website provides heaps of relevant information.

The legislative foundation for the Western Australian workcover scheme is provided by:

  1. Workers’ Compensation and Injury Management Act 1981
  2. Workers’ Compensation and Injury Management Regulations 1982

WorkCover WA also monitors compliance with the scheme and the performance of service providers (insurers) in the scheme.

The WA Workers’ Compensation and Injury Management Act 1981 provides for or shall we say, outlines, the compensation of workers who suffer an injury (or illness) and for certain dependents of those workers where the injury caused their death. It also provides for return to work programmes, specialised retraining programmes for certain injured workers and the promotion of safety measures aimed at preventing or minimising work-related injuries. The Act also provides for the “fair, just, economical, informal and quick” dispute resolution between parties involved in workcover matters.

The WA Workcover Act defines a ‘worker’ very widely so that contractors, sub-contractors, directors and their workers also may be covered.

Like in all other states, workers compensation insurance is legally compulsory and is provided by “approved private insurers”. A list of approved workcover insurers is available from WorkCover WA.  Eligible employers may also apply to become self insurers.(Employers may self-insure if they meet the administrative and financial criteria set out by WorkCover. Self-insurers remain bound by the Act.)

Premium rates apply from 30 June each year, like in all other states.

Injured worker entitlements are, comprehensively,  listed on the WorkCover WA website.

WA Employers have  legal obligations which include:

  • holding a current workers’ compensation policy
  • possession of a certificate of currency (proof that they hold a current policy)
  • provision of an injury management system
  • reporting notifiable incidents to WorkSafe
  • forwarding an injured worker’s claim for workers compensation to the insurer within 3 working days
  • upon advice from the insurer, payment of weekly payments to the injured workers

The Workers’ Compensation and Injury Management Act 1981 requires all employers to put in place an injury management system, documented in writing and available to all workers upon request. It should include an outline of the procedure to follow when an injury occurs on the job and the contact details of the person responsible for the injury management system.

Furthermore, the Code of Practice (Injury Management) 2005 states that employers should have an Injury Management Policy which sets out the employer’s approach to injury management. This policy should also be readily available to all workers.

A return to work (RTW) programme must be provided to an injured worker, as required. However, a RTW programme is obviously not required if a worker is certified as totally fit to return to their pre-injury job.

The employer must keep the injured worker’s job open for 12 months from the date when the worker becomes entitled to weekly payments, unless it is not reasonably practicable to do so. If the job is no longer available, or the injured worker is no longer able to do the job, the employer must provide a similar (in status and pay) job for which the worker is qualified and capable of performing. (Section 84AA of the ACT)

In addition to general benefits, an injured worker can take a common law action for negligence against his/her employer if s/he is assessed as having a whole of person impairment (WPI) of more than 15%.

Injured workers may also be entitled to a lump sum payment – there are two types of lumpsum payments, Schedule 1 or Schedule 2.

Under Schedule 1 a lump sum settlement (called a Redemption) can be negotiated with the workcover compensation, depending on the degree of impairment. The injured worker must have received weekly payments for at least 6 months and have a permanent total or partial injury/impairment.

Under Schedule 2, the injured worker can apply for a non-negotiable lump sum settlement at any time. The injured worker must have been medically assessed as having sustained a degree of impairment, for which there is a set amount payable.

Northern Territory (NT)

All Legislation and Regulations

Read more about Workcover in NT

NT WorkSafe is the statutory authority IN charged of administering the workers rehabilitation and compensation scheme for the Northern Territory.

The NT WorkSafe website provides all the relevant information about the workcover scheme in NT.

The main legislative foundation for the Northern Territory workers compensation (aka workcover) scheme is provided by the following two legislations:

  1. Workers Rehabilitation and Compensation Act
  2. Workers Rehabilitation and Regulations

Since 1 July 2012, the definition of worker under the WA Workers Rehabilitation and Compensation Act has been ‘a natural person who, under a contract or agreement of any kind (whether expressed or implied, oral or in writing or under a law of the Territory or not), performs work or a service of any kind for another person unless:

(i) the natural person:

(a) is paid to achieve a specified result or outcome; and
(b) has to supply plant, and equipment or tools of trade, needed to perform the work or service; and
(c) is, or would be, liable for the cost of rectifying any defect arising out of the work or service performed; or

(ii) a personal services business determination relating to the natural person performing the work or service is in effect under section 87-60 of the Income Tax Assessment Act 1997 (Cth)’.

The criteria under (i) is commonly referred to as ‘the Results Test’. A person is a worker unless they meet the Results Test or they supply a personal services business determination.

In addition, the following groups are specifically eligible for workers’ compensation: St John Ambulance volunteers; people serving on juries; jockeys and stable hands; and volunteer fire-fighters and emergency services personnel.

A worker is entitled to compensation for any personal injury or disease or an aggravation of an injury or disease that occurs: during the course of employment; by any incident arising out of employment; on a journey to or from work, except if the accident involved a motor vehicle.

Injuries from motor vehicle accidents while on a normal journey travelling to or from work are not covered by workers compensation but may be claimed under the Motor Accidents Compensation scheme (MAC), which is administered by the Territory Insurance Office (TIO).
Company directors can opt to be covered by the scheme, as can family members working in a business.

Commonwealth employees in the Northern Territory are not covered by the Northern Territory scheme, but instead are covered by Comcare (see below).

Workers compensation insurance is compulsory – as is in all states- and is provided by approved private workcover insurers. A list of approved insurers is available from NT WorkSafe. Eligible employers may also apply to become self- insurers.

Premium rates paid by employers are set by individual insurers.

Injured worker entitlements are listed on the NT WorkSafe website (see for example Average weekly earnings figures).

Like in other states, Employers in the NT have certain legal obligations which include:

  • holding a current workers’ compensation policy
  • providing a workers compensation claim form to a worker who requests it and sending the completed form to the insurer within 3 working days of receiving it from the worker
  • if advised by the insurer that liability has been accepted or deferred, commencing weekly compensation payments within 3 working days of the decision to accept or defer the claim
  • participating in return to work and/or retraining of the injured worker

With regards to rehabilitation matters, Vocational Rehabilitation providers are approved by NT WorkSafe and a list of these providers is available on the NT WorkSafe’s website.

The employer’s role is to (of course) work with the insurer to “assist” the injured/ill worker to return to work pronto. This includes taking reasonable steps in providing suitable employment and referring the injured/ill worker to an accredited vocational rehabilitation provider to provide a suitable return to work programme.

If the injured/ill worker is unable to return to their normal (pre-injury) job, their employer should determine if there is another job or even a combination of jobs is available that the injured worker might be able to do. This may again involve getting an accredited vocational rehabilitation provider to assess the suitability of these proposed duties, and make recommendations regarding ergonomics and workstations and stuff like that.

If the employer is unable to provide the injured/ill worker with suitable employment, the employer- in consultation with the insurer- must refer the injured/illworker to the alternative employer incentive scheme.

In the NT, there is no possibility for an injured/ill worker to sue his/her employer for negligence under the common law.

If an injured/ill worker is left with a permanent impairment, there is however a provision under the NT Workers Rehabilitation and Compensation Act for a lump sum payment to be paid in respect of that permanent impairment.

Payment to the injured/ill worker may be made to compensate for the permanent impairment once the injury or illness has stabilised. This payment does not affect the worker’s rights to weekly compensation benefits, medical or rehabilitation expenses.

The lump sum is -like in other states- based on the percentage impairment of the whole person (WPI).

The NT Act also provides for self-insurers. Employers may self-insure if they meet the criteria set out by NT WorkSafe. But, like in other states, Self-insurers will then remain bound by the Act.

Tasmania (TAS)

All Legislation and Regulations

Read more about Workcover in Tasmania

WorkCover Tasmania is the statutory authority in charged of administering the workers compensation and rehabilitation scheme for Tasmania. WorkCover also controls and administers the Workers Compensation Fund.

The legislative foundation for the Tasmanian workcover scheme is provided by the following Act and Regulation:

  1. Workers Rehabilitation and Compensation Act 1988
  2. Workers Rehabilitation and Compensation Regulations 2001

The Workers Rehabilitation and Compensation Act 1988 “provide[s] for the rehabilitation and compensation of workers in respect of occupational injuries suffered by workers…”

Occupational injuries includes an injury or work-related disease which may be incurred at work, while travelling on work-related matters or attending work-related training or functions.

To be compensable, all injuries and diseases (illnesses) must be caused by work. As such conditions such as heart attacks and strokes that occur during the course of work are not compensable unless employment was a substantial contributing factor. This approach is the same in Australian states.

As in all other states, Employers must be compulsorily (by law) insured with a licensed ‘workcover’ insurer or apply to WorkCover Tasmania to become a self-insurer.

Injured worker entitlements are listed on the WorkCover Tasmania website.

Like in other Australina jurisdictions, TAS Employers have certain legal obligations, which include:

  • registration with WorkCover TAS as an employer (or holding a permit as a self-insurer)
  • payment of the required insurance premium to their insurer
  • ensuring that the insurer has full and correct statements of people employed and wages paid (no employer fraud!)
  • reporting of any injuries which occur at their workplace when they occur
  • notification to the insurer within 3 working days
  • forwarding of the injured worker’s workers compensation claim to their insurer within 5 working days (unless they are a self-insurer, where the claim is forwarded to the WorkCover Board)
  • payment of the first week of income maintenance to an injured worker and the first $200 of other benefits (i.e medical or rehabilitation costs) – this ‘excess’ can be removed by payment of an additional premium-
  • keeping a record of all injuries notified by their workers
  • provision of a safe and healthy work environment; and
  • assisting in the rehabilitation and return to work of injured/ill workers.

It is mandatory for workplaces with 20 or more employees to have a rehabilitation policy which meets the requirements set out by WorkCover TAS. This policy must be  displayed prominently so all workers can see and read it.

Employers with more than 50 workers must nominate a Return-to-Work (RTW) Coordinator whose job is to coordinates the return to work of injured workers.

Employers must prepare a Return To Work plan/programme if the injured/ill worker will be incapacitated for between 5 and 28 days; and an Injury Management Plan if the worker will be incapacitated for more than 28 days.

Should a worker suffer a significant injury (likely to result in an absence of more than 5 working days) the employer’s workcover insurer will appoint an injury management coordinator to oversee the rehabilitation and return to work process. Or, employers must assign them to the appointed RTW Coordinator in larger organisations.

The employer must hold available the incapacitated worker’s job for 12 months after the date of injury, unless the employment no longer exists or it is not reasonably practicable to make that employment available to the worker. (Section 138A)

The employer must also provide suitable alternative duties for the injured worker for 12 months following the day on which the worker became incapacitated, unless it is ‘not reasonably practicable for the employer to make work available for the worker which the worker could reasonably be expected to perform’. (Section 138B)

The TAS employer must have readily available:

  • a summary of the provisions of the Act
  • the details of the applicable workers compensation insurer;
  • the name of the nominated rehabilitation coordinator (if required, i.e. if there are more than 50 employees).

The employer must also prominently display its rehabilitation policy (if required to have one, i.e. the workplace has more than 20 workers).

Workers who suffer a permanent disability or permanent loss of function of a part of their bodies are entitled to lump sum compensation. The assessment of permanent disability is made by a medical practitioner.

Employers may self-insure if they meet the administrative and financial criteria set out by WorkCover TAS. However, Self-insurers remain bound by the Act.

A TAS employer must make and maintain ‘true’ records of the names of all workers employed by the employer; the wages paid to those workers; the trade or occupation of each of those workers; any notice of injury or claim for compensation received and such other matters as may be prescribed. The records must be retained for 7 years from the date on which the worker ceases to be employed by the employer and, in the case of a notice of injury or claim for compensation, a period of 7 years from the date of receipt of the notice or claim.

Commonwealth (COMCARE)

All Legislation and Regulations

Read more about the Comcare compensation scheme

The legislative foundation for the Commonwealth Government’s compensation (workcover) scheme is the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act); and Comcare is the relevant government agency charged with administering this legislation. The full text of the relevant legislation are:

  1. Safety, Rehabilitation and Compensation Act 1988
  2. Safety, Rehabilitation and Compensation Regulations 2002

The SRC Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) establishes a fully funded, premium based, system and a licensed self-insurance based system of compensation and rehabilitation for workers who are injured in the course of their employment.
It basically covers all Commonwealth workers, including members of the Australian Defence Force (ADF), Banks, postal workers, and workers of certain private sector corporations.

ACT Public Service workers are also covered by virtue of the ACT Public Service having been declared a Commonwealth authority for the purposes of the SRC Act on 30 June 1994.

Comcare and the Safety, Rehabilitation and Compensation Commission (SRCC) are established under the SRC Act, which outlines the role and functions of both bodies including administrative, regulatory and service responsibilities. The SRCC is a statutory body with regulatory functions in relation to Comcare and other authorities which determine workers’ compensation claims under the SRC Act.

The SRC Act includes a benefit structure similar to other workcover schemes that includes:

  • the payment of the reasonable cost of medical treatment
  • income replacement (i.e. weekly payments) for periods of incapacity for work
  • payment of lump sums for permanent impairments

Current statutory benefits rates under the SRC Act 1988 are listed on the Comcare website.

The Comcare website also provides useful information for injured workers about their rights and entitlements.

 

updated 4 July 2014