Know your rights - Work Safety & Injuries in the workplace
Occupational Health and Safety is a major issue facing Australian workplaces and unions.
Many decades of struggle by trade unions have produced healthier and safer working conditions but the level of occupational injury, disease and death is still too high, despite intense efforts to reform Australian occupational health and safety systems.
Employers are obliged to ensure the health and safety of workers under the Work Health and Safety Act 2011.
The Act says:
‘Once a safety risk is identified, your employer must eliminate the risk. If it is not reasonably practicable to eliminate the risk, they must minimise the risk.’
Whilst employees have their duties at work, these are always underpinned by the general legislative duty highlighted above for your employer to ensure your health and safety.
If you are injured at work, the flow chart below outlines the steps you should take.
Many injuries will only require first aid, however more serious injuries should follow the Workers Compensation guidelines.
All injuries sustained in the workplace should be reported to your employer as soon as is practicably possible.
Outcomes regarding your claim:
Once the Insurer receives your claim they will make a decision as to whether or not they accept
liability for the claim. Acceptance is commonly provisional in the first instance. Similarly if you
are entitled to Medical Expenses the insurer should also pay reasonable medical expenses that are
exempt from prior approval or have been approved.
There are several outcomes that could arise which are set out below:
1. Provisional liability accepted: enables your insurer to start paying weekly benefits and medical
expenses to you (the injured worker) without admitting or incurring liability under the legislation
or otherwise. Provisional liability allows weekly payments to continue for a maximum of 12 weeks
and payment of medical expenses up to $7500. It also extends the time allowed for the insurer to
make a final decision on liability. Where provisional liability has been accepted and there has
been a loss of earnings, the insurer must start weekly payments within seven days of being notified
of the injury. Similarly if you are entitled to Medical Expenses the insurer should also pay
reasonable medical expenses that are exempt from prior approval or have been approved.
2. Denial of Provisional liability: This is where payments do not start due to what the insurer
believes is ‘a reasonable excuse’. The insurer must notify you in writing of the reason/s. They
must also provide you with advice on how to resolve the issue. Reasons may be:
• there is insufficient medical information
• the insurer is unable to contact worker
• the worker refuses access to information
• the injury is not work-related
• the injury is not a significant injury
• the injury is notified after 2 months
3. Dispute Liability: this is where the insurer outright rejects your claim.
4. Liability Accepted: this is where the insurer accepts your claim.
If you receive a letter telling you that your claim has been provisionally denied or that your
claim is rejected, please contact the SDA so that we can provide you with legal advice and
assistance in the matter.
Once the claim has been received by the Insurer and you are deemed unfit for work by your nominated
treating Doctor and or are on restricted hours, the Insurer has 7 days to commence payments, unless
they advise you of the reason they are not commencing payments.
If you have NO capacity for work as per your “Work Capacity Certificate” and your claim has been
provisionally accepted or liability has been fully accepted the following payments apply:
• First 13 weeks you will receive the lesser of:
o 95% of your pre-injury weekly earnings, minus the value of any deductible amount OR
o The maximum weekly compensation amount
• From 14 to 130 weeks, the lesser of:
o 80% of your pre-injury weekly earnings, minus the value of any deductible amount OR
o The maximum weekly compensation amount
• From 131 to 260 weeks:
Your weekly payments will cease unless you are assessed as having no current work capacity, and
this is likely to continue indefinitely. If this is the case, your weekly payment is based on
whichever is less:
o 80 per cent of your pre injury average weekly earnings minus the value of any deductible amount,
o The maximum weekly compensation amount (see note below) minus the value of any deductible amount
• After 260 weeks (5 years of weekly payments):
o Weekly payments will cease after five years unless your level of impairment is greater than 20 per cent and you have been assessed by your insurer as having no work capacity which is likely to continue indefinitely. For all workers, weekly benefits generally ease when they reach Commonwealth retiring age. Exceptions do apply for claims made before October 2012 and for workers who are injured after retirement age. Please contact the SDA for more information regarding these exceptions.
Rights regarding your return to work:
If you return to work with partial capacity your employer is required to offer suitable duties in
line with your capacity where reasonably practicable. You are entitled to choose a rehabilitation
(‘rehab’) provider of YOUR choice to manage your injury and return to work. Rehab providers are
qualified to make assessments regarding suitable duties and your capacity. The SDA can refer you to
a rehab provider.
A return to work plan based on your capacity for work should be developed with your employer and
advice from your Doctor and in many instances a rehab provider. Your return to work plan should
include details of suitable duties:
Suitable duties must be:
✓ in line with your capacity for work
✓ provided for the purpose of increasing your capacity for work.
Suitable duties may include:
✓ parts of your job you were doing before your injury
✓ the same job, but on reduced hours
✓ different duties altogether
✓ duties at a different site
✓ a combination of some or all of the above.
If you are unsure of your rights around a workers compensation claim, your claim is refused, payments cease or you need advice, please contact the SDA for assistance. Workers Compensation is a complex scheme and legislation is subject to change. Where necessary the SDA can refer members to our Workers Compensation lawyers or facilitate the appointment of an independent rehabilitation provider.