Tuesday 18 February 2025

Contact 1800 772 679

Contact 1800 772 679

The magazine of the Public Service Association of NSW and the Community and Public Sector Union (NSW Branch)

Your Case, Your Choice

Your Case, Your Choice

Advice from the PSA and McNally Jones Staff lawyers on medical examinations.

In recent months the PSA has been seeing a lot of declined workers compensation matters where the insurer has arranged for the member to be examined by a doctor referred to as an “Independent Medical Examiner” they appoint AFTER the claim is declined. This is referred to as an Independent Medical Examination (IME).

This happens most often in claims for psychological injury.

Members do not have to attend these. And in no circumstances should they do so without seeking legal advice.

In many cases where an insurer arranges such an examination before liability is declined, the member is also not obliged to attend. That is because the legislation makes the circumstances in which an insurer entitled to such an examination extremely limited.

Any member who makes a workers compensation claim and is notified of an IME by the insurer before liability is declined should contact the union on [email protected] and we’ll refer you our workers’ compensation lawyers for advice.

If the IME appointment is after liability has been declined you should notify the insurer you won’t be attending as you have legal advice you are not required to attend because liability has been declined. In these circumstances when a claim has been declined you should also contact [email protected] to provide a copy of the “section 78” decline notice and you will be referred for immediate assistance with your declined claim.

Do not “request a review” or provide the insurer with any other documents or medical reports you may have. You will be provided with the best individual legal advice on whether you have good prospects of overturning the decline of your claim, and how they will go about this. Send your documents to [email protected] and we will be in contact.

Permanent Impairment Claims (Lump sum claims)

Members seeking advice on whether they have a “Section 66” claim for permanent impairment (lump sum compensation) or have been referred to an IME by the insurer for this purpose should also contact the Member Support Centre for a referral. In some instances, this may have an effect on your ability to continue to work in your current role.

To be eligible for lump sum compensation under Section 66, all permanent physical injuries must have a degree of permanent impairment more than 10 per cent; including hearing loss claims. Permanent primary psychological or psychiatric injuries are also compensable under Section 66, provided that the degree of permanent impairment is at least 15 per cent.

What benefits are you entitled to?

Depending on the individual claim and the type, nature and severity of the work-related injury, a worker may be eligible for the following compensation benefits:

• Weekly payments.

• Lump sum permanent impairment compensation.

• Medical, hospital and rehabilitation expenses.

• Property damage expenses.

• Death benefits and funeral expenses may be payable when a worker dies as a result of a workplace injury.

Weekly benefits: no current work capacity

• During the first 13 weeks of incapacity, workers who have no current work capacity will receive up to 95 per cent of their pre-injury average weekly earnings (PIAWE).

• From weeks 14 to 130, workers who have no current work capacity will receive up to 80 per cent of their PIAWE.

• After 130 weeks, workers who still have no current work capacity will continue to receive up to 80 per  cent of their PIAWE.

Weekly Benefits: some work capacity

First entitlement period – Weeks 1 to 13

• Workers who have current work capacity and are able to work during the 13 weeks after a claim is made are entitled to top up payments to 95% of their PIAWE.

Second entitlement period – Weeks 14 to 130

• Workers who have returned to work for at least 15 hours per week from weeks 14 to 130 are entitled to top up payments to 95 per cent of their PIAWE.

• Those who have capacity to work, but who are working less than 15 hours per week from weeks 14 to 130 may receive up to 80 per cent of their PIAWE.

• If a worker is able to work but is not working at least 15 hours per week by the end of the 130 weeks, the entitlement to weekly payments will cease, except for workers with a permanent impairment of more than 20 per cent.

After the second entitlement period (Contact the Member Support Centre and seek advice in these circumstances)

• Continuation of weekly payments after 130 weeks will depend on the person having no capacity for work and if having a capacity for work, having achieved an actual return to paid employment of at least 15 hours per week and earning at least $216 per week.

• Workers must apply in writing to the insurer for continuation of weekly benefits beyond the second entitlement period (this involves completing a prescribed form).

• Weekly payments will be limited to a maximum of five years except for workers with a permanent impairment of over 20 per cent.

• Workers with a permanent impairment over 20 per cent are eligible to receive weekly payments until reaching the Commonwealth retirement age, subject to ongoing work capacity assessments.

The Workers Compensation scheme can be difficult to navigate when someone has suffered a work-related injury.

“At any time you feel overwhelmed or unsure of your entitlements or rights, call our Member Support Centre (MSC) on 1800 772 679, or send an email with relevant documents to [email protected] and we will get back to you as soon as we can” said General Secretary Stewart Little.

PSA CPSU NSW members are encouraged to ensure that their employer has an obligation to find them suitable duties at your workplace if their Certificate of Capacity states you are fit for suitable duties at work.

This may be in the form of restricted duties, restricted hours or work patterns, or may be at another work location.

If a member finds that their employer is not offering these duties, they should contact the MSC, where an Industrial Officer can advocate on their behalf, and if necessary a referral to the union’s workers compensation lawyers will be provided.

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