There are two compensation schemes in Western Australia in relation to injuries suffers at a workplace. They are;
- The “no fault” compensation scheme governed by the Workers Compensation and Injury Management Act 1981 as amended;
- The common law system applying if the injuries were caused by the employers negligence.
The No Fault Statutory Scheme
All employers in Western Australia (unless they are covered by the Federal ComCare scheme) are required by law, to obtain workers’ compensation insurance covering them for their liability to pay benefits to injured workers, pursuant to our “no fault” workers compensation scheme.
An injured worker intending to apply for benefits must;
- completed a claim form; and
- obtained a first medical certificate
give those documents to the employer within 12 months from the occurrence of the injury.
What is an Injury
The legislation defines an injury to include a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer’s instructions. Other non physical injuries are also covered including stress related conditions where the employment is a contributing factor and contributed to a significant degree but incapacity from stress will not be compensible if the stress was wholly or predominantly caused by certain factors including dismissal, retrenchment, demotion, discipline, transfer or redeployment unless the employers behaviour was unreasonable and harsh.
- the employer has no genuine dispute concerning the employers liability for the claim; and
- the injury was not attributable to alcohol or drug use (which impairs the proper functioning of the workers facilities or failure to use protective equipment, clothing or accessories provided by the employer or the workers serious and wilful misconduct
the employer is required to pay statutory benefits (limited to a “prescribed amount”) which comprise;
- Wages, payable on the workers normal pay day and in the normal manner for medically certified periods of total or partial incapacity;
The current (20/21) prescribed amount for weekly payments is $235,971 but in limited circumstances eg total and permanent incapacity, the limit can be increased
A workers compensation rate is calculated depending on whether or not they are paid pursuant to an industrial award (including enterprise orders, collective agreements and enterprise bargaining agreements). If a worker is not paid pursuant to an award, there is a “step down” process after 13 weeks incapacity, resulting in weekly compensation being reduced to 85% of the person’s pre accident average weekly earnings calculated over a 12 month period. There is no “step down” for award workers although after 13 weeks, overtime, bonuses and other allowances may not be included in the calculation of the on going weekly benefit.
A weekly payment of compensation is capped at twice the average weekly earnings as calculated by the Australian Bureau of Statistics. That rate is currently, $2,645.90 (2020/21).
Weekly compensation payments do not include superannuation.
- Medical expenses
The current (2020/21) prescribed amount for medical expenses is $70,791 but again, there are limited circumstances in which the limit can be increased.
- Rehabilitation Expenses
The current (2020/21) prescribed amount for $16,518.
Weekly payments will continue subject to the provisions of the legislation whilst a medical practitioner certifies the worker totally or partially incapacitated by reason of the injury.
Medical certificates must be obtained on a regular basis and delivered to the employer or its insurer.
Cessation of Payments
An injured workers right to ongoing weekly payments and other benefits may cease if:
- The injured worker consents to payments ceasing;
- The employer obtains an order from the WorkCover’s Conciliation and Arbitration Service that payments be suspended or cease or continue at a reduced rate due to there being for example, a genuine dispute as to the employers liability to pay benefits, a recovery in the worker’s capacity, a failure to comply with/attend a return to work program or medical review etc
- Payments have reached the prescribed amount mentioned above;
- The workers claim is settled on the basis of a lump sum payment to redeem the injured worker’s statutory rights to ongoing benefits;
- The injured worker elects to pursue a common law claim as discussed below.
The legislation protects an injured workers employment for a period of 12 months from when weekly payments commenced. Within that period, if the injured worker recovers, even partially, the employer must provide the injured worker with
- the position the injured worker held when injured, if it is reasonably practicable to provide that position to the worker; or
- if the position is not available, or if the worker does not have the capacity to work in that position, a position —
(i) for which the worker is qualified; and
(ii) that the worker is capable of performing,
most comparable in status and pay to the position held at the time of the injury.
During the 12 month period, if the employer intends to dismiss the injured worker, 28 days notice of that intention must be given to the worker and to WorkCover WA by completing Form 15G here.
WorkCover WA will then determine if any further information is required and a Compliance Officer may contact the employer to discuss details of the termination.
If a worker is in receipt of weekly payments at the time of dismissal, they will continue to receive statutory weekly repayments and medical/related benefits.
Disputes are referred initially to the Workers Compensation Conciliation Service by completing a Form 100. The form can be lodged on line. A link to the forms is included below at Useful Links.
The primary role of the service is to resolve disputes by agreement with the assistance of an independent and impartial Conciliation Officer.
Each party is given the opportunity to present their position and support it with evidence and other information. This may occur quickly and informally over the ‘phone or face-to-face in a conciliation conference conducted in private (unless Covid 19 restrictions apply in relation to face to face meetings)
WorkCover publishes a useful Guide to Workers Compensation Conciliation Service. See the Useful links below.
If a dispute is not resolved at Conciliation, the Conciliation Officer will issue the parties with a Certificate of Outcome. Within 28 days of the date the certificate was issued, an application may be made to have the dispute referred to the Workers Compensation Arbitration Service. The forms have been included in the Useful links below.
Arbitration can be a complex, costly and time-consuming process.
Again WorkCover publishes a useful Guide to the Arbitrations Service. The Guide is included in the Useful links below.
The parties have the right to be represented by legal practitioner or registered agents and at Conciliations and Arbitrations.
All employers in Western Australia (unless they are covered by the Federal ComCare scheme) are required by law, to obtain workers’ compensation insurance covering them for their liability to pay damages at common law to an injured worker.
The common law requires an employer to take reasonable care to avoid exposing an employee to an ‘unnecessary risk of injury’. The duty is that of a reasonably prudent employer and it is not a duty to ‘safeguard a worker completely from all perils’
That duty encompasses an obligation to take reasonable steps to provide a safe system of work. Discharge of the duty requires the employer to warn employees about work hazards of which it knew, or ought to have known. It also extends to guarding against foreseeably inadvertent and negligent conduct on the part of others.
The duty also encompasses an obligation to take reasonable steps to provide safe plant and equipment to enable employees to carry out their work safely.
The duty of care is non-delegable. This means that an employer cannot escape responsibility for the discharge of the duty of care by delegating it to a third person. The non-delegable nature of the duty of the employer extends to the situation where an employee is working at the premises of another (for example, labour hire situations). The employer must still take reasonable care for the safety of the employee.
If the injury is caused by, or arises out of an unsafe system of work, it must be an unsafe system of which the employer was aware or ought to have been aware.
A Court must not use the benefit of hindsight when considering what an employer ought to have done.
In Western Australia, like most other states, we have certain workplace occupation and safety legislation applying to each worksite. The legislation includes the Occupational Health and Safety Act 1984 and Regulations 1996 and its provisions can be taken into account by the Courts when determining whether or not an injury was caused by an employer’s negligence.
The legislation covers a range of workplace issues including;
- general workplace duties,
- the identification, control and management of hazards in the workplace,
- personal protective clothing and equipment,
- respiratory and noise control issues,
- the prevention of falls in the workplace,
- fall injury prevention systems,
- hazards associated with electrical installations within the workplace,
- scaffolding, gantries, hoardings and barricades and formwork,
- working in confined spaces,
- safety requirements in relation to certain work processes including tilt up concrete and pre cast concrete elements, moulding and casting, welding and allied processes, spray painting, abrasive blasting, excavation and earthworks and demolition;
- driving commercial vehicles,
- inductions in the construction industry,
- safety issues whilst operating certain types of plant and handing certain hazardous substances; and
- the performance of work considered to be high risk.
The process involved in pursuing a claim for damages can be complex and may involve a worker making a choice between retaining the worker’s rights under the no fault scheme or abandoning those rights and electing to “go common law”.
To access common law damages, certain things must happen as follows;
- the workers injuries must have been caused by the employer’s negligence;
- the worker’s injury must have resulted in a “whole person impairment” of not less than 15% as certified by an approved medical specialist;
- the worker must make an election to retain the workers right to sue the employer for negligence and the election must be registered at WorkCover;
- Legal proceedings are commenced within the limitation period which, for personal injury claims, is 3 years from the date of the accident;
- The court must make a finding that the workers whole person impairment is not less than the 15% whole person impairment threshold.
There are considerable risks associated with the prosecution of a common law claim including the following;
- The loss after 6 months of the workers weekly compensation benefits unless the certified whole person impairment is greater than 25%;
- The immediate loss of the workers right to have the employer pay the medical and rehabilitation expenses unless the certified whole person impairment is greater than 25%;
- The worker may not be able to prove negligence;
- The worker’s damages at common law might be assessed at less than the amount paid under the no fault workers compensation scheme in which case, the common law claim will fail;
- The workers degree of impairment resulting from the injury might be assessed by the Court at below the threshold in which event, the claim will also fail;
- If the degree of whole person impairment is assessed within the band not less than 15% and not more than 25%, the total damages are capped. In other words, damages (which include payments made under the statutory no fault scheme) cannot be awarded in excess of the cap which currently (2020/21) is $495,542 at least until the 30 June 2021.
- There can be a long delay whilst the common law claim proceeds through the court system;
- Regardless of the outcome, the worker will be called upon to finance the claim and if the outcome is adverse, the additional risk is that the costs will not be recoverable and in some circumstances, the worker may have to pay the employers costs.
The good news is that over 90% of common law claims are settled without the claim going to court. Although the risks are significant, with proper processes in place, the risks can be managed to ensure a favourable outcome.
The other good news is that workers who have a certified whole person impairment of not less than 25%, will continue to receive statutory benefits in accordance with the provisions of the Act, and there is no cap on the amount damages they can receive.
Depending on the nature of the injury and the circumstances of each case, common law damages are awarded under various well established “heads” or “components” as follows;
- General damages
Covering pain and suffering, loss of the enjoyment of life, loss of bodily function, disfigurement and loss of expectation of life.
The assessments are subjective and often will depend on whether surgery has taken place, whether the surgery was successful, whether further surgery is recommended, the extent of the on impairment and the nature of medication prescribed for the condition. A wide range of factors are taken into account;
- Economic loss or Loss or Earning capacity both Past and Future
Covering past loss of wages (which may or may not have been paid in statutory weekly payments of compensation)
the discounted value (applying the statutory 6% discount tables as required by section 5 of the Law Reform (Miscellaneous Provisions) Act 1941) of a workers future loss of capacity/income calculated, in the absence of any other evidence, to the eligibility date for the age pension, based usually, on evidence from any one or more of the;
- GP, specialist and surgeon;
- rehabilitation provider;
- labour market analyst (identifying suitable employment options and net wage rates per occupation);
- occupation physician and therapist;
The assessment of the value of a workers retained earning capacity and the discounted value of the loss of earning capacity into the future is a complex process with potentially, much scope for negotiation particularly when there is a conflict in the medical evidence.
- Medical expenses both Past and Future
Covering the expected future cost of medical and specialist reviews, medication, treatment (physio, chiropractic, massage, acupuncture etc), future surgery, aids and appliances, etc
- Past services of a personal or Domestic nature, either paid or gratuitous
Covering family and friends gratuitous care, other gratuitous services, housekeeping services, support services, handyman and heavy work assistance including cleaning, home modifications,
- Special damages
- Travel expenses both past and future
- Interest on past losses
In more complex claims involving serious brain injuries for example, the heads of damage can be quite extensive. Conversely, not all workers will suffer losses under each category.
These damages are calculated without reference to the amount paid under the statutory “no fault” compensation scheme although at the end of the process, those payments are accounted for in the overall net amount payable. An injured person cannot be compensated twice for the same injury.
Standard Workers Compensation Insurance Policy for Employers go here.
How do Employers Manage Claims. Read more.
Read more about Conciliations at WorkCover, here
Read more about Arbitrations at WorkCover here.
Arbitration Forms and Rules can be viewed here
Prescribed amounts for 2020/21 can be viewed here
WorkCover Prosecution Results can be viewed here.
List of Approved Medical Specialist go here.
Impairment Assessment Forms go here.
Income tax rates go here.
Present value of future losses; the statutory 6% Discount Table go here.
Eligibility Tables for Age Pension Entitlement go here.
Life Expectancy information go here.
The Fair Work Commission deals with the protection of certain work place rights and applies to some employers like corporations which are incorporated under Federal laws. When these rights have been breached, action may sometimes be taken to recover compensation.
The rights include;
- Benefits you may have under your contract of employment or the ward or enterprise agreement applicable to your employment;
- Enforcing your rights by taking court action against your employer;
- Making a complaint or inquiry about your employment.
and will operate to protect you from workplace discrimination (on the grounds of for example, age, sex, race, physical or mental disability), victimisation and unfair treatment.
The law prohibits your employer for taking “adverse action” against you such as;
- Not giving you something which you are entitled to under for example, your contract of employment or workers compensation legislation;
- Treating you differently to someone else in the workplace;
- Changing you job in a way that causes you a loss;
- “injuring” you which covers injury of any compensable kind. The term has a wider meaning that financial injury or injury involving deprivation of rights and can be applicable to any circumstances where an employee is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen to be injurious or prejudicial.
The Commission can also deal with applications to stop bullying behaviour in the workplace. It must be shown that the person has repeatedly behaved unreasonably and that the behaviour created a risk to health and safety.
The Commission can also deal with issues concerning your dismissal if it is unfair or for a prohibited reason.
Reporting and Investigating Industrial Accidents
If you are an employer, you have a statutory duty pursuant to section 23I the Occupational Safety and Health Act 1984, to FORTHWITH report to the Commissioner for Occupational Safety and Health using prescribed forms here .
any accident or disease that results in;
a fracture of the skull, spine or pelvis;
fracture of any bone —
(i) in the arm, other than in the wrists or hand;
(ii) in the leg, other than a bone in the ankle or foot;
an amputation of an arm, a hand, finger, finger joint, leg, foot, toe or toe joint;
the loss of sight of an eye;
any injury which, is likely to prevent the employee from being able to work within 10 days of the day on which the injury occurred.
Certain industrial diseases must also be reported
- infectious diseases: tuberculosis, viral hepatitis, Legionnaires’ disease and HIV, where these diseases are contracted during work involving exposure to human blood products, body secretions, excretions or other material which may be a source of infection; and
- occupational zoonoses: Q fever, anthrax, leptospiroses and brucellosis, where these diseases are contracted during work involving the handling of, or contact with, animals, animal hides, skins, wool, hair, carcases or animal waste products.
In some cases eg a fatality, the information can be provided by ‘phone (1800678198) but the Commissioner will require a minimum of the following;
- name and business address of the employer; and
- name, sex and occupation of the employee; and
- address of the place at which the injury was incurred; and
- date and time the injury was incurred; and
- brief description of how the injury was incurred and the type of machine or equipment, if any, involved; and
- nature of the injury or, where applicable, report of death; and
- the place to which the employee has been taken.
An employee has a statutory duty to forthwith, report to the employer, any injury or harm suffered at work. When such a report is made, the employer has a statutory duty pursuant to section 23K of the Occupational Safety and Health Act 1984 to investigate the report, determine what action, if any, the employer intends to take and notify the employee of what action is proposed.
The WorkSafe Division of the Department of Commerce (referred to as WorkSafe) is responsible for the administration and enforcement of the Occupational Safety and Health Act 1984 (the OSH Act) and its accompanying regulations, the Occupational Safety and Health Regulations 1996 (the Regulations).
The legislation offers a framework of rules and regulations applying to any workplace as well as a regime for enforcement including prosecuting a party for failure to comply with the legislation.
Worksafe has a detailed Prosecution Policy which aims to ensure decisions in relation to prosecutions are based on appropriate criteria which are public, open, fair and capable of being applied consistently across the broad range of circumstances to which the occupational safety and health laws apply. WorkSafe says it will avoid arbitrary decisions (whether or not to prosecute), and will ensure prosecutions are not conducted for improper purposes, capriciously or oppressively.
The policy reflects the principles in the Statement of Prosecution Policy and Guidelines issued by the Director of Public Prosecutions (DPP) and published in the Western Australian Government Gazette on 3 June 2005. In particular, this policy adopts the principles that, before proceeding, a prosecution must:
- disclose a prima facie case (ie if the available evidence is believed by the court, is it capable of proving, beyond reasonable doubt, all the elements of the offence); and
- be in the public interest (this includes consideration of the prospects of success). The question of whether a prosecution is or could be in the public interest is a complex matter but the policy contains factors which may weigh in favour or against prosecution as well as factor which WorkSafe considers to be irrelevant. For more information go to link
Based on the policy, where a WorkSafe inspector obtains sufficient evidence to establish a prima facie case, and there is a reasonable prospect of a conviction, consideration will be given to taking prosecution action, instead of or in addition to applying alternative enforcement actions, where:
- the issue of notices is not considered sufficient for ensuring compliance with the Act or regulations;
- an alleged breach of the Act or regulations either has resulted, or could have resulted, in a fatality or serious injury;
- alleged failure to comply with an improvement or a prohibition notice;
- an inspector alleges a person has repeated the same offence;
- in cases of discrimination against an employee for any action in relation to occupational safety and health;
- breaches of the consultative provisions of the Act; and
- obstruction of an inspector.
Prosecutions are conducted by a WorkSafe lawyer or a lawyer from the State Solicitor’s Office.
WorkSafe maintains a public register of prosecutions since 1 January 1997. Read more.
Factors that may weigh in favour of prosecution
Factors that may weigh in favour of prosecution include:
- the need for punishment and deterrence. (Deterrence may be specific/personal or general, or both. With respect to general deterrence, it is noted that a particular prosecution may be warranted to establish a particular principle (a so-called “strategic prosecution”), for example where it is necessary to convey a message that WorkSafe regards breaches relating to particular matters as serious breaches. This might also apply where there are new concerns such as those relating to an emerging occupational health issue. A further example might be where WorkSafe considers it important to reinforce the message that a particular type of duty holder has responsibilities under the Act that will be enforced);
- the circumstances in which the alleged offence was committed. (Considerations here might include the seriousness of the alleged offence and/or its outcome, the culpability of the offender and whether the alleged offence had been brought to the attention of the offender prior to the date in question);
- the need to ensure consistency in the application of the law. (Similar cases should be dealt with in a similar way. This factor may also extend to the need to obtain clarity in the application of the law, because certainty is necessary for laws to be consistently applied and followed);
- the need to maintain the rule of law (which embraces concepts such the application of the law without the influence of arbitrary power; the equal accountability of all before the law; and the protection of the rights and freedoms of individuals through the courts);
- the need to maintain public confidence in basic constitutional institutions, including Parliament and the courts; and
- the entitlement of the State or other person to criminal compensation, reparation or forfeiture, if guilt is adjudged (for example, persons injured as a result of OSH breaches may be entitled to criminal compensation).
Factors that may weigh against prosecution
Factors which may, singly or in combination, render a prosecution inappropriate in the public interest (and against which the factors in favour should be balanced) include:
- the trivial or technical nature of the alleged offence in the circumstances;
- the youth, age, physical or mental health or special infirmity of the victim, alleged offender or a witness. (These factors may give rise to vulnerabilities that may render it inappropriate to subject the person to the trauma of prosecution or testifying in court. In WorkSafe’s context, factors such as age, mental health or special infirmity may also impact on a person’s future role in the workforce and hence the likelihood of re-offending. Notwithstanding these comments, there is an argument that vulnerabilities of youth, age, or infirmity, when applicable to a victim, should entitle the person to the protection the law provides. In other words, the offence is regarded as more serious because the victim was vulnerable. In view of these considerations WorkSafe will apply this factor with caution, with due regard to the question of whether or not the factor does, or is likely to, give rise to considerations that genuinely weigh against prosecution. Where these vulnerabilities weigh in favour of prosecution rather than against, they will be taken into account under item 2.3.3(b) “the circumstances in which the alleged offence was committed”.)
- the alleged offender’s antecedents (ie previous history. This includes prosecutorial antecedents and may include improvement or prohibition notices. However it is recognised that the absence of prior notices does not necessarily indicate attention to workplace safety and health. Further the presence of prior notices is not proof of a prior offence, although, relevant prior notices does indicate the hazard was known or ought to have been known);
- the staleness of the alleged offence, including delay in the prosecution process which may be oppressive. (This factor must be considered in the context of the Parliament’s intent, as reflected in the OSH Act, that the period for bringing charges for offences under the Act is three years from the date of the offence. Charges greater than three years old cannot be brought. Given this, it would be unusual for “staleness of the alleged offence” to weigh heavily against proceeding. Only in extraordinary circumstances would it be expected that a delay of up to three years in bringing charges would be sufficiently oppressive as to weigh strongly against proceeding);
- the degree of culpability of the alleged offender in connection with the offence. (This factor weighs against prosecution where culpability is low. Clearly a high level of culpability would weigh in favour of prosecution, and is to be considered under factors such as “the need for punishment and deterrence” and “the circumstances in which the alleged offence was committed”);
- the obsolescence or obscurity of the law. (Given the OSH Act and Regulations are relatively modern laws, which are reviewed regularly, this factor is less likely to arise in WorkSafe’s context than in some others where the legislation is older. Nevertheless the possibility that some obscurity or obsolescence could arise cannot be disregarded);
- whether a prosecution would be perceived as counter-productive to the interests of justice. (For example, a prosecution that is seen to be harsh might be perceived to be “unjust” and falling within this factor);
- the availability or efficacy of any alternatives to prosecution. (In WorkSafe’s context, notices are usually available as an alternative to prosecution. In limited circumstances, other options might also be available, such as the cancellation or suspension of a licence or registration. The availability of an alternative, especially the issuance of a notice, does not necessarily mean that the alternative alone is sufficient. Notices, in particular, are designed to effect change in the workplace, and although prosecution may do the same, punishment and deterrence plays a role in prosecution that is absent in the issuance of notices alone. Consideration needs to be given to whether the more serious enforcement action of prosecution is warranted in view of the alternatives available);
- the lack of prevalence of the alleged offence and need for deterrence, either specific/personal or general;
- whether the alleged offence is of minimal public concern. (In WorkSafe’s context extreme care must exercised before concluding that any particular breach is of minimal public concern. The OSH legislation is modern, undated regularly, and developed through a tripartite Commission, frequently with the input of additional stakeholders and/or public comment. It would be unusual to conclude that an offence under this legislation is of minimal public concern);
- the attitude of the victim of an alleged offence to prosecution. (See section 3.4 for a discussion of victims in the context of the OSH Act and regulations);
- the likely length and expense of a trial if disproportionate to the seriousness of the alleged offending;
- whether the alleged offender has co-operated in the investigation and prosecution of others or has indicated an intention so to do;
- the likely outcome in the event of a finding of guilt having regard to the sentencing options available to the court;
- the likely effect on public order and morale;
- whether a sentence has already been imposed on the offender which adequately reflects the criminality of the circumstances; and
- whether the alleged offender has already been sentenced for a series of other offences and the likelihood of the imposition of an additional penalty, having regard to the totality principle, is remote (ie whether a person has been sentenced to a level where “enough is enough” and the court is unlikely to impose any additional penalty).
The following matters are not to be taken into consideration in evaluating the public interest:
- the race, colour, ethnic origin, sex, religious beliefs, social position, marital status, sexual preference, political opinions or cultural views of the alleged offender. (The DPP’s guidelines contain an exception where the matter is an element of the offence, however it is not likely that such an exception would ever be applicable to any WorkSafe matter);
- the possible political consequences of the exercise or non-exercise of discretion;
- the prosecutor’s personal feelings concerning the alleged offender or victim; and
- the possible effect of the decision on the personal or professional circumstances of those responsible for the decision.
INSURANCE FOR INCOME PROTECTION, TOTAL AND PERMANENT DISABLEMENT
Many people have insurance protecting their income in the event that they are unable to work due to illness or injury.
Many people are unaware they have such insurance because often, the polices are part of the persons superannuation package or are benefits maintained on their behalf as part of Union membership.
The policy wording is not always the same nor are the benefits in the event of total or partial incapacity. The duration of benefits is commonly limited to 2 years but can be longer. In some cases, the benefits are ongoing to retirement age.
In cases where the person has a total and permanent disablement, other benefits might be payable in terms of a lump sum.
Before you make an appointment to see us concerning your claim, it would be useful to obtain a copy of your policy and all relevant schedules from the insurer.