TR12 Workers compensation

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1 Changes were made to the Workers Compensation Act on June 19, These changes are yet to be tested therefore this leaflet is not exhaustive and members should seek advice from Federation if they have any queries at any stage of their claim. TR12.1 Introduction This leaflet is designed to assist members working in any workplace. It is also relevant to casual and temporary teachers and those working under administrative hours and conditions. It is important that members check by contacting Federation s Communication/Welfare section on if they are unsure about their rights, if they are given information that appears to conflict with the information in this leaflet or if they are seeking more details about their entitlements. TR12.2 What benefit is there in lodging a workers compensation claim? Teachers can claim workers compensation benefits, such as weekly payments for periods off work, treatment expenses and lump sums for permanent impairment, if they: are injured at work; are injured on the way to or from work in very limited circumstances; are injured at any time out of school hours while on duty; contract an illness from students or other teachers on staff; or contract an illness, where the workplace is the substantial contributing factor, or, if a disease, where employment is the main contributing factor. TR12.3 Will lodging a claim assist me to get a transfer? No. The Workers Compensation Act assumes that an injured worker will return to full pre-injury employment. Even when the injury has been brought about by perceived or actual bullying, harassment, breakdown of interpersonal workplace relationships or misbehaving students, the Department of Education and Communities (the Department) takes the view, and has informed Federation, that there is an expectation that the injured teacher will need to resume normal duties at the preinjury worksite and role before eligibility to transfer will be permitted. Until this time a flag is recorded against the teacher s employment profile with Staffing Services. A medical certificate stating that the teacher is fit for preinjury duties is necessary before the flag will be lifted; thus a flag will prevent transfer. There are exemptions, however, they are few and far between and will likely require assistance from Federation. TR12.4 Will my workers compensation claim be treated as a complaint? No. If a situation has arisen in the workplace between individuals, a separate complaint following the Department s Complaint Handling Policy Guidelines will need to be lodged. Refer to the Federation Information leaflet TR6 Complaints and allegations (Complaint Handling Policy Guidelines) in the schools sector. TR12.5 How do I lodge a claim? If a teacher suffers a work related injury they should notify the employer as soon as possible that they are making a claim for workers compensation. Such notification is usually made to the Notification Hotline The teacher needs to provide the employer with an appropriate WorkCover medical certificate in which the treating doctor should state: the nature of injury and that work is the substantial contributing factor to the injury; or if the injury is a disease that work is the main contributing factor how long the teacher will be off work, and/or what restrictions the injury places on the teacher s capacity to work. There are instances when the teacher will need to submit a written claim form as well. Such instances include: if the insurer requests one; if the teacher will be off work for 12 weeks or longer or medical expenses will exceed $5000; if the insurer decides not to start provisional payments or stops making provisional payments. Teachers need to remember that they have a right to lodge a claim for workers compensation and that the employer has a responsibility to notify its insurer within 48 hours that a work related injury has occurred. The insurer can refuse to pay provisional payments if the injured worker does not promptly make a claim. Claims for weekly benefits should be made within six months of the injury date. Compensation may not be recovered if a claim is made more than three years after an injury unless it resulted in death or serious and permanent disablement. TR12.6 What types of injuries can be claimed? Physical injuries Any physical injuries, including voice or hearing problems, that are substantially caused by work. Teachers are also covered if they are on duty away from the workplace, for example, on an excursion. Journey claims New arrangements came into effect on June 27, There is only very limited access to compensation for 1

2 injuries sustained travelling to or from home and work. If injured when travelling between home and work the teacher should seek advice from Federation as to whether there are other legal avenues. Teachers are generally no longer covered travelling between home and work but should be covered if they are required to travel between worksites such as those teaching across campuses, or to attend school endorsed activities away from their substantive worksite. Itinerant teachers should also be covered for journey claims travelling from school to school but these cases may need to be legally tested under the 2012 changes to workers compensation legislation. Motor vehicle accidents If involved in a motor vehicle accident when travelling between home and work, a teacher may have valuable rights under motor accidents legislation. Motor accidents must be reported to the police within 28 days of the accident. An Accident Notification Form should also be completed within 28 days to access early payment of treatment expenses and wage loss up to $5000. This benefit is payable whether you are at fault or not. A formal motor vehicle accident claim form must be lodged with the Compulsory Third Party Insurer within six months of the motor accident. It is important for the teacher to contact Federation s Communication/Welfare section to seek advice. Infectious diseases Teachers can claim compensation for infectious diseases such as glandular fever, whooping cough and measles if their employment was the main contributing factor to contracting the disease. To establish whether it is more probable that the disease was contracted at work a statement setting out the names of students and staff suffering from the disease with whom the teacher has been in contact, dates of their absences from school and the nature and extent of contact with the students or staff should be supplied. Psychological injuries If the teacher is suffering from a diagnosable psychiatric condition, for example, anxiety or adjustment disorder, for which their doctor believes work to be the substantial contributing factor, a claim for workers compensation should be lodged. If the teacher is suffering from a psychiatric condition which is diagnosed as a disease, employment will have to be the main contributing factor to the disease. TR12.7 Do I need to lodge a leave form? Yes. Even though a workers compensation claim has been made, the teacher still needs to submit the appropriate leave form either on the paper form or through e-laps. Teachers should indicate the nature of leave as sick/ accident leave. They should also tick yes to question 4 on the form which asks, Is workers compensation leave involved? A copy of the WorkCover medical certificate should accompany the form. Copies of these documents should be retained by the teacher. It is important that when the absence is extended Employee Services are notified promptly. Do not save up the certificates nor the lodgement of the leave until you return to duty. TR12.8 Will my claim be accepted? Assessing liability: Claims are not automatically accepted. For all claims received the insurer must, in a timely manner, assess the claim. This means that the insurer needs to assess that the injury: has occurred; is work related; and is not covered by preclusions under the Act. The most common reasons given for rejection of a claim are that: the injury is not work related (Section 4 of the Act); employment is not the substantial contributing factor (Section 9A of the Act); or the injury arose out of reasonable action of the employer (Section 11A of the Act). The most common causes for rejection of a claim under Section 11A include: the teacher has been notified that an allegation or complaint has been lodged against them and a response is required; or the teacher has been identified as requiring efficiency support (improvement). TR12.9 Acceptance/rejection of liability Currently, the insurer must start paying weekly benefits and/or medical expenses within seven days of receiving the claim, unless there is a very good reason not to do so. In the first instance the insurer will generally accept provisional liability while assessing the claim. This period can be up to 12 weeks. After assessing the claim the insurer must notify the teacher of its decision to accept or reject liability. If rejecting liability, a reason must be given and a date on which payment for weekly benefits and medical expenses will cease. If a claim is rejected the teacher should contact Federation s Communication/Welfare section to gain advice on how the decision maybe disputed. TR12.10 What other medical and other expenses can be claimed? Prior approval must be sought from the insurer for treatment expenses (not including treatment in the first 48 hours of the injury) otherwise the insurer is not liable to pay for the treatment. Teachers can claim such expenses as: medical, hospital, dental, pharmacy and ambulance expenses; treatment by a physiotherapist, chiropractor, osteopath, masseur or speech therapist, which should be endorsed 2

3 by a doctor as reasonably necessary treatment for the injury; glasses, crutches, dentures, et cetera; modification of the home or vehicle if requested by a doctor; travel expenses, under certain conditions, to get treatment; domestic assistance, in some circumstances. Teachers have the right to nominate their treatment providers. TR12.11 Is there a limit to how long medical and other expenses will be paid? Medical and other expenses will only be paid while an injured worker is receiving weekly payments and once the weekly payments cease for a period of 12 months. TR12.12 Do I need approval from the insurer to seek medical treatment? Yes. Once the insurer has accepted the claim, it pays all medical expenses in the first 48 hours following the injury occurring. However, after the first 48 hours following the injury occurring there will be no payment for medical expenses that have not previously been approved by the insurer. This is especially relevant when teachers are arranging operations. Approval to proceed will not automatically be granted. If the claim is rejected the teacher may claim the bills under Medicare and/or their private health fund, but it is strongly advised that the member indicate that the bills relate to a disputed or unresolved workers compensation claim. Refer to If the member pursues the disputed claim it is these expenses that the solicitors will be attempting to recover from the insurer. TR Workers compensation weekly payments This leaflet does not attempt to cover all the details of payments. From the time of legislative change in June 2012 access to weekly payments varies according to the nature and length of injury and date the injury occurred. Total incapacity for injuries or claims on or after October 1, 2012 First 13 weeks If totally incapacitated because of the injury, the teacher will receive 95 per cent of salary or the maximum weekly payment, whichever is the lesser, for the first 13 weeks after the injury. These payments have a ceiling which is limited to $1, per week. 14 weeks to 130 weeks If still totally incapacitated at 14 weeks the maximum available payment is reduced to 80 per cent of salary. If the injured worker has some capacity to work and has returned to work for at least 15 hours per week, the payment is 95 per cent of salary less what she/he is earning or able to earn. If the injured teacher has capacity for work and has not returned to work or is working less than 15 hours a week, the payment is 80 per cent of salary less what she/he is earning or able to earn whichever is the greater. 130 weeks to 260 weeks (2.5 years to 5 years) After 130 weeks injured workers will only receive payments if: 1. they have no work capacity and this is likely to continue indefinitely or; 2. they: a) have applied for continuation one year before payments were due to end; b) work 15 hours a week or more; c) are being paid at least $155 a week; and d) have been assessed as likely to continue to be indefinitely incapable of extra employment or higher pay. If they meet this test, the injured worker must receive a work capacity test at least every two years. If the injured worker is eligible to receive payments after 130 weeks, they will continue to be paid at the rate they received during the week period. After five years An injured worker must have a 20 per cent whole person impairment to continue weekly payments after five years. TR12.14 Do I get paid both workers compensation payments and vacation pay? Determination 3 of 2009 under the Teaching Services Act of 1980 Annual Leave and Payment for Non-Attendance by Teachers in Non Term Weeks defines annual leave to be a period of four or five weeks (reflecting the difference between the Eastern Vacation Division and the Western Vacation Division). The rest of the holiday period is defined as non-term weeks, that is payments made to teachers during the period when they are not required by the employer to attend their workplaces. Teachers receiving workers compensation payments will receive payments for annual leave in accordance with this Determination and workers compensation payments as determined by the Fund Manager in accordance with the Workers Compensation Act. This means that teachers, who are absent from work and have provided a WorkCover medical certificate, will receive both workers compensation (where claim accepted) and vacation pay for the first week of each holiday period. The following non-term weeks the teacher will receive workers compensation payments only. If a medical certificate is not provided the teacher will receive, where accrued, vacation pay. TR12.14 relates to the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2009 and not the Workers Compensation Act. Note: This does not apply to TAFE teachers. 3

4 TR12.15 Top up The ability of employees to top up workers compensation payments with sick or long service (extended) leave is currently under review. Federation will provide further advice as information becomes available. TR How long can I continue to receive benefits? Injuries and claims after October 1, 2012 Most workers payments will cease after 2.5 years, unless there is total incapacity for work. Payments will then cease for those with total incapacity after five years, unless there is 20 per cent whole person impairment. Refer to Existing claims (those made before October 1, 2012) Those receiving weekly payments will undergo a Work Capacity Assessment in Transitional arrangements will apply after the Work Capacity Assessment has occurred. Medical and treatment expenses will continue to be paid until 12 months after weekly payments stop. For those teachers not presently receiving weekly payments, medical and treatment expenses, should have ceased on June 19, All claims Special compensation may be payable for a period of incapacity resulting from injury related surgery. Weekly payments of compensation will cease on retiring age, that is the age when a person is entitled to the age pension, unless the injury was suffered after that date. In those circumstances a teacher is entitled to a maximum of 12 months weekly workers compensation benefits. TR12.17 What happens when I am ready to go back to work on a full time or part time basis? Under the Workplace Injury Management and Workers Compensation Act 1998 once the injury has been reported and the doctor states that the teacher is fit for suitable duties, the insurer must provide an Injury Management Plan. Such a plan, containing a staged return to work, should be developed in consultation with the injured teacher and this must commence, even though the teacher may not have heard yet whether the claim has been accepted. Federation advises that rehabilitation plans should involve a recognised rehabilitation provider, that is an outside agency. Initially, suitable employment does not have to be with the current employer or even in a similar role to that which the injured teacher was undertaking prior to the accident. The rehabilitation plan may even take place at another worksite if it can be organised by the Departmental Injury Management Advisor (IMA). The insurer has a responsibility to ensure that an injured teacher has access to an accredited rehabilitation provider, who then has responsibility for coordinating rehabilitation and return to work programs. Teachers should keep in mind that they have the right to nominate their: rehabilitation provider treating doctor associated medical providers. If teachers encounter any problems with any of the above, they should contact Federation s Communication/Welfare section immediately. TR12.18 What happens if the injury re-occurs? An aggravation of a disease or condition may be a new claim or a recurrence of injury. The decision is made by the treating doctor. In the case where the doctor states the injury is a recurrence the teacher is still covered by the original claim. If totally unfit the calculation of weekly payments (see TR12.13) for this further period does not begin again. It may also be that certain treatment expenses can be awarded by the Workers Compensation Commission after the 12 month cap, however, at this stage this issue will also need to be legally tested. The teacher should submit a workers compensation claim and a recurrence of injury form, with a WorkCover certificate to the principal/campus manager. TR12.19 Lump sum compensation for permanent impairment (S66) If, after an injury at work the teacher is left with a permanent loss of function to various parts of their body and/or impairment of function to their senses such as hearing, sight or speech, the teacher may be entitled to monetary compensation. In general terms such claims are made 12 to 24 months after the injury, once the condition has stabilised. The teacher can only claim lump sum compensation for permanent impairment where the impairment is more than 10 per cent whole loss of function to person. S66 is a once only benefit for injuries after June 19, 2012; if the impairment were to further deteriorate over time no further claim can be made for additional loss of function. At this stage it is unclear how injuries prior to June 19, 2012 will be treated as the amendments to the legislation need to be legally tested. Settlement of these rights does not in any way involve a settlement of the entire claim. The teacher will still have rights to weekly payments of compensation, whilst incapacitated, and whilst eligible, payment of medical expenses arising from the work injury. Teachers should contact Federation s Communication/ Welfare section if they have experienced a loss, loss of use, or derangement of any body part, organ system or organ function as a result of a workplace injury including but not limited to the following: speech loss sensory loss hearing loss 4

5 loss of vision arm injuries hand injuries leg injuries foot injuries loss of sexual organs brain damage permanent impairment of back, neck, pelvis disfigurement. For injuries on or after January 1, 2002, a lump sum is also available under this section for permanent psychological injury. Lump sum compensation is not available for secondary psychological injuries. This impairment must, however, be assessed as 15 per cent or more permanent whole person impairment. TR12.20 Can I sue the Department because it was negligent? Teachers are, in effect, taking legal action against the employer by lodging the workers compensation claim. However, to be eligible to access work injury damages for negligence the teacher must have 15 per cent or more whole loss of function to person. There is a three year time limit in which to bring a work injury damages for negligence claim, however leave may be granted in some circumstances to extend this time limit. Teachers are advised to seek advice from Federation s Communication/Welfare section if they believe they may be eligible to claim work injury damages for negligence. Phone TR12.21 Lump sum commutation settlement A commutation settlement is when the teacher asks for weekly compensation benefits to be paid out as a tax free lump sum. There are various conditions attached and the teacher would need legal advice. These full and final settlements have conditions attached. Again, teachers should contact Federation s Communication/Welfare section. Phone TR12.22 Workers compensation and medical retirement The Department s practice is that teachers with an open workers compensation claim cannot apply for medical retirement from the teaching service. Federation does not believe that members should be prevented from applying and it is recommended to seek advice from Federation s Communication/Welfare section. Phone TR12.23 Superannuation and workers compensation If the teacher is medically retired, she/he is entitled to receive both weekly workers compensation payments and if a contributor, a State Superannuation Scheme (SSS) pension. State Authorities Superannuation Scheme (SASS) and First State Super (FSS) contributors receive their lump sum provision, as well as their weekly compensation payments. If medically retired the teacher should continue to send medical certificates to the insurer to access benefits whilst eligible. If unsure, the teacher should contact Federation s Communication/Welfare section immediately. Phone TR12.24 Casual/temporary teachers If working as a day to day casual or as a temporary, teachers do have a right to make a claim for workers compensation if an injury occurs. The advice above remains relevant and should be followed. This leaflet sets out in summary, current service conditions, information and advice regarding relevant Department of Education and Communities (DEC) and TAFE policy documents and other legislative requirements. It is not intended to be exhaustive as changes occur from time to time. Members should also refer to the relevant DEC and TAFE documents. Members who are given conflicting advice or who are uncertain about their entitlements can contact Federation on (02) or or the Federation website ( Authorised by Jenny Diamond, General Secretary, NSW Teachers Federation, Mary Street,Surry Hills NSW tr12 November