Personal Injury Lawyers Perth | Workers Compensation

A Guide to Workers’ Compensation in Perth, Western Australia

In Western Australia, workers’ compensation is a mandatory requirement for all employers, ensuring that workers have access to medical treatment, income support, and other benefits following a work-related injury or illness.

I. Understanding Workers’ Compensation

Workers’ compensation is a no-fault insurance scheme that provides financial support and protection to employees who have been injured or become ill as a result of their work.

The main objectives of workers’ compensation are to:

Provide injured workers with access to medical treatment and rehabilitation services;
Replace lost income whilst the worker is unable to work due to their injury or illness; and
Encourage a safe and timely return to work by injured workers.

II. The Legal Framework for Workers’ Compensation

Workers’ compensation in Perth, Western Australia is governed by the Workers Compensation and Injury Management Act 1981 (WA) (“the Act”) and the Workers Compensation and Injury Management Regulations 1982 (WA) (“the Regulations”).

III. Eligibility for Workers’ Compensation

To be eligible for workers’ compensation in Western Australia, the following criteria must be met:

You must be a worker, as defined by the Act. This includes full-time, part-time, casual, and seasonal workers, as well as apprentices and trainees; and
You must have sustained an injury during the course of your work.

IV. The Claim Process for Workers’ Compensation

A. Attend a medical practitioner to obtain a Workers’ Compensation First Certificate of Capacity

If you have been injured at work or have developed a work-related illness, you will need to attend a medical practitioner for an examination, as soon as possible. If your treating medical practitioner is satisfied that your injury or illness is work-related, they will issue you with a Workers’ Compensation First Certificate of Capacity which provides details of your injury or illness, your capacity for work, and any recommended treatment or restrictions.

B. Report the injury

You should report the injury to your employer as soon as possible. Your employer is required to keep a record of all workplace injuries and report serious incidents to WorkSafe Western Australia.

C. Submitting a claim for workers’ compensation

To submit a claim for workers compensation you will need to complete a Workers’ Compensation Claim Form and provide it to your employer, along with your Workers’ Compensation First Certificate of Capacity. Your employer is required to forward your claim to their workers’ compensation insurer within 5 working days.

D. Assessment of the claim

The insurer will assess your claim and determine whether you are eligible for workers’ compensation benefits. If your claim is accepted, the insurer will commence payment of benefits, such as medical expenses and income support. If your claim is denied, you can make an application to the Workers’ Compensation Conciliation Service for assistance in trying to resolve the dispute.

V. Types of Benefits Available in Workers Compensation Claims

Having made a workers’ compensation claim, an injured worker may be entitled to receive the following benefits:

Medical and hospital expenses:

The insurer should cover the injured worker’s reasonable medical and hospital expenses up to the maximum prescribed amount of $73,197.00 (as at 30 April 2023).

Vocational rehabilitation expenses:

The insurer should provide support for vocational rehabilitation services, such as retraining, job-seeking assistance, or workplace modifications, to help the injured worker return to work.

The insurer should cover the injured worker’s vocational rehabilitation expenses up to the maximum prescribed amount of $17,079.00 (as at 30 April 2023).

Weekly wages payments:

If the injured worker is unable to work due to their injury or illness, they are entitled to receive weekly payments to replace their lost income.

The maximum weekly payment that an injured worker can receive (“Amount C”) is capped at twice the average weekly earnings being an amount of $2,872.00 (as at 30 April 2023).

The insurer should cover the injured worker’s weekly wages up to the maximum prescribed amount of $243,991.00 (as at 30 April 2023).

The rate of weekly worker’s compensation payments, received by the injured worker, depends upon whether they are a non-industrial award worker or a worker under an industrial award, as detailed below:

A non-industrial award worker:

For the first 13 weeks they receive:

An average of the payments (including overtime, bonuses and allowances) they earned over the one year prior to their injury (in the same employment in which they were injured).
If they have been employed for less than one year, their earnings will be averaged over the period they were employed.

From week 14 onwards they receive:

Their weekly payment will be reduced to 85% of their entitlement.

A worker under an industrial award:

For the first 13 weeks they receive:

The rate of weekly workers’ compensation payments payable under their industrial award;

plus

Any over-award or service payment paid to them on a regular basis;

plus

Any overtime and bonus or allowance. (Overtime and any bonus or allowance paid will be the average earned over the period of 13 weeks to the time of incapacity).

From week 14 onwards they receive:

The rate of weekly workers’ compensation payments payable under their industrial award;

plus

Any over-award or service payment paid to them on a regular basis;

plus

Any allowance paid to them on a regular basis and related to the number and pattern of hours worked;

plus

Any other allowance prescribed by the regulations. (Overtime, bonuses or other allowances are excluded).

Permanent impairment compensation:

If the injured worker suffers a permanent impairment as a result of their work-related injury or illness, they may be entitled to a lump sum payment in addition to their weekly payments. The amount they receive will depend on the which part of the body is affected and the extent of the impairment, as assessed by an approved medical specialist or suitably qualified doctor.

They may also be entitled to receive a lump sum wages payment. The amount they receive will depend on how much of the maximum available amount of wages (the prescribed amount) they have already received by way of weekly compensation payments and consequently how much is remaining. As stated above the prescribed amount is currently $243,991.00 (as at 30 April 2023).

* It is important to note that the maximum prescribed amounts and “Amount C” are increased (indexed) on 1 July each year and are published on WorkCover’s website.

VI. Dispute Resolution for Workers’ Compensation Claims

Disputes may arise during the workers’ compensation claims process in Western Australia, often involving disagreements about the injured worker's entitlements or the insurer's decisions. In such cases, it is essential to understand the dispute resolution process available to workers, which aims to resolve disagreements fairly and efficiently.

A. Overview of Dispute Resolution for Workers’ Compensation Claims

The dispute resolution process for workers’ compensation claims in Perth, Western Australia is administered by WorkCover WA, the government agency responsible for overseeing the workers’ compensation and injury management system and dispute resolution service.

The dispute resolution service includes the option for parties, with a dispute, to attend conciliation and, if necessary, arbitration. The primary objective of the dispute resolution process is to resolve disagreements between injured workers and insurers, in a timely and cost-effective manner while ensuring fairness for all parties involved.

B. Reasons for Disputes in Workers’ Compensation Claims

Disputes in workers’ compensation claims may arise for various reasons, including:

Liability:

The insurer may dispute that the injured worker's condition is work-related or that the worker is an eligible employee under the Act.

Compensation entitlements:

There may be disagreements about the amount of compensation owed to the injured worker, such as the level of weekly payments or the extent of medical and rehabilitation expenses.

Permanent impairment:

Disputes may arise over the assessment of a worker's permanent impairment and their entitlement to a lump sum payment.

Return to work:

Conflicts may occur regarding the injured worker's capacity to return to work, suitable employment options, or the provision of vocational rehabilitation services.

C. The Conciliation Process

Initiating conciliation:

Where a dispute regarding a workers’ compensation claim has arisen between an injured worker and their employer or the insurer, either of the parties can apply to the Workers’ Compensation Conciliation Service seeking assistance with resolving the dispute.

The applicant is required to have made attempts to resolve the dispute with the other parties before filing the application.

The process for applying to the Workers Compensation Conciliation Service for assistance with resolving a dispute involves the relevant party submitting a completed Application for Conciliation (form 100) to WorkCover WA. The application may be lodged in person, by post or by email. It is also possible for a party to submit the application online if they are registered for this service.

A copy of the conciliation rules can be accessed here: Workers’ Compensation and Injury Management Conciliation Rules 2011.

The role of the conciliator:

Once the application has been lodged, WorkCover WA will appoint a conciliator to assist the parties in resolving their dispute. The conciliator is an impartial third party who has experience and expertise in workers compensation law and dispute resolution. Their role is to facilitate communication between the parties, help identify the issues in dispute, and explore options for resolution.

The conciliator may express their opinions about the matter and the probable outcome if it were to proceed to arbitration. However, their opinions are not binding nor are they empowered to adjudicate on the dispute.

The conciliation conference:

The conciliator will convene a conciliation conference, which is an informal meeting between the injured worker, their legal representative (if applicable), the insurer, and any other relevant parties. The conference may be held in person, by telephone, or in some circumstances through video conferencing. During the conference, the parties will have the opportunity to present their views, discuss the issues, and negotiate a resolution.

Outcomes of conciliation:

The conciliation ends when either the involved parties have reached an agreement resolving the dispute or the conciliation officer believes there is minimal chance of an agreement being reached or the 56 day time limit for conciliation has expired.

Once the conciliation has ended the conciliation officer will issue a Certificate of Outcome which includes the following information:

Details of the issues that were in dispute at the beginning of the conciliation.
Details of the issues that were resolved by the parties and the basis upon which they were resolved.
Details of any issues that remained unresolved.
Details of any payment directions.

Parties who have reached an agreement may choose to execute a Deed which records the terms of the agreement.

If there are still matters in dispute between the parties, an Application for Arbitration can be made to the Workers’ Compensation Arbitration Service.

D. The Arbitration Process

Initiating arbitration:

A party can only make an Application for Arbitration if, in accordance with section 182H of the Act, a Certificate has been issued by the Director of the Conciliation Service stating that the dispute between the parties is unsuitable for conciliation or if, in accordance with section 182O of the Act a Certificate of Outcome has been issued by a Conciliation Officer.

An Application for Arbitration may be submitted in person, by post or by email. It is also possible for a party to submit the application online if they are registered for the service.

An Application for Arbitration must be made within 28 days of the issue of a certificate by the Director of the Conciliation Service or the Conciliation Officer. If there are extenuating circumstances, a party may request an extension of time to make an Application for Arbitration by lodging an Application to Extend Time to Make an Application for Arbitration Form (Form 152).

A copy of the arbitration rules can be accessed here: Workers’ Compensation and Injury Management Arbitration Rules 2011.

The role of the arbitrator:

The arbitrator is an independent decision-maker with expertise in workers compensation law. Their role is to hear the evidence presented by both parties, make findings of fact, and determine the legal issues in dispute. Unlike the conciliator, the arbitrator has the power to make legally binding decisions, which are enforceable through the courts.

The arbitration hearing:

The arbitration hearing is a more formal process than the conciliation conference. Both parties will have the opportunity to present their case, submit evidence, call witnesses, and make legal submissions. The arbitrator may also ask questions of the parties and their witnesses to clarify any issues. The hearing may be held in person or by telephone or video conferencing, depending on the circumstances.

The arbitrator's decision:

Following the arbitration hearing, the arbitrator will further consider the evidence and make a determination (arbitration order) on the disputed issues. The Arbitration Order is legally binding and enforceable through the courts.

Appeals:

If either party is dissatisfied with the arbitrator's determination, they may have the right to appeal to the District Court of Western Australia on a question of law. Appeals must be lodged within 28 days from the date on which the arbitrator provides the parties with the written reasons for the determination.

E. The Role of Legal Representation in Dispute Resolution

Although injured workers are not required to have legal representation during the dispute resolution process, engaging the services of an experienced workers’ compensation lawyer can be beneficial. A lawyer can help you understand your rights, prepare your case, negotiate on your behalf, and represent you during conciliation and arbitration proceedings. Legal representation can be particularly valuable if your case is complex or involves significant entitlements.

F. Tips for Navigating Dispute Resolution

Be prepared:

Ensure that you have all relevant documentation, such as medical reports, wage records, and correspondence with the insurer, organised and readily available.

Be proactive:

Actively participate in the dispute resolution process by attending meetings, asking questions, and providing input.

Stay focused on resolution:

Approach the dispute resolution process with a problem-solving mindset, focusing on finding a fair and reasonable outcome for all parties.

Be patient:

Dispute resolution can be a lengthy and sometimes frustrating process. Remain patient and maintain open communication with your legal representative and the conciliator or arbitrator.

Consider seeking legal advice:

Consider engaging the services of an experienced workers’ compensation lawyer to help you navigate the dispute resolution process and maximise your entitlements.

VII. Common Law Claims for Damages

In addition to workers' compensation benefits, injured workers in Western Australia may be entitled to pursue a common law claim for damages against their employer.

Common law claims are available when the injured worker can prove that the workplace injury was caused by their employer’s negligence. The purpose of these claims is to provide further compensation for the injured worker, particularly for non-economic losses, such as pain and suffering.

A. Types of damages available

In a common law claim, injured workers may seek the following types of damages:

General damages:

Compensation for pain and suffering, loss of enjoyment of life, and other non-financial impacts of the injury. This category of damages is subject to statutory caps.

Past and future loss of earnings or earning capacity:

Compensation for past and future lost income, as well as the loss of earning capacity.

Past and future medical treatment expenses:

Compensation for reasonable past and future medical treatment costs related to the workplace injury.

Past and future gratuitous services:

Compensation for care and assistance provided by family members and friends with respect to tasks that the injured worker can no longer complete themselves.

B. Permanent whole person impairment threshold for common law claims

To be eligible to pursue a common law claim, the injured worker must have a permanent whole person impairment of at least 15%.

If the injured worker has a permanent whole person impairment of at least 15% and less than 25% there is a cap on common law damages whereby the amount of damages is determined by the severity of the injured worker’s injuries.

If the injured worker has a permanent whole person impairment of at least 25% there is no cap on common law damages.

C. Potential effect of common law claim on other entitlements

Where an injured worker with a permanent whole person impairment of at least 15% and less than 25% opts to sue their employer for common law damages, there is a step-down in weekly payments and their entitlement to other statutory benefits ends. If they have not already exhausted the prescribed amount for their claim, their weekly payments will step-down (be reduced) on the following basis:

During the first 3 months, they will receive 70% of the weekly payments amount that they would have otherwise received.

During the second 3 months, they will receive 50% of the weekly payments amount that they would have otherwise received.

After 6 months their weekly payments will stop.

Where an injured worker with a permanent whole person impairment of at least 25% opts to sue their employer for common law damages, there will be no step-down and they will continue to receive 100% of the weekly payments.

D. Statutory limitation periods for common law claims

In accordance with section 14(1) of the Limitation Act 2005 (WA) an action for damages relating to a personal injury to a person, which includes a workplace injury to a worker, cannot be commenced if a period of 3 years has elapsed since the cause of action accrued (being the date the worker suffered or subsequently became aware of the workplace injury).