In New South Wales, persons who have suffered a workplace injury can claim for compensation under the Workers Compensation Act 1987 No 70.  

The State Insurance Regulatory Authority (SIRA) is the NSW Government agency responsible for regulating the NSW workers compensation system. There are three types of insurers in the NSW workers compensation system: iCare, self-insurers, and specialised insurers. 

iCare / Workers Insurer

On 1 September 2015, WorkCover NSW was replaced by three new entities, being SafeWork NSW, the State Insurance Regulatory Authority, and iCare. Between them, these entities cover all the same services and functions previously provided by WorkCover NSW.  

iCare is the New South Wales workers compensation scheme that provides benefits and compensation to persons who are injured in workplace accidents.  

iCare provides a ‘no fault’ scheme whereby an employee will be entitled to receive statutory compensation if the employee is considered a ‘worker’ and sustains an injury that arises out of, or in the course of, employment. There are also incidents whereby subcontractors would also classify as a “worker” or “deemed worker” under the scheme and therefore be entitled to workers compensation benefits.  

If a person has been injured or has aggravated an injury, or their health has been affected by their workplace, they may be entitled to compensation from iCare. 

The injured worker is required to report their injury to their employer and complete an iCare claim form. The injured worker is also required to have their doctor complete a Certificate of Capacity.  

The benefits available to an injured worker through the iCare include weekly wages, medical expenses, lump sum payments for the injured worker’s permanent impairment, and travel expenses for medical appointments.  

Work Injury Damages (Common Law claim for Workers Compensation)

Work Injury damages are separate to the benefits available to a person through iCare. 

A worker may have a common law right to damages (compensation) where a duty of care has been breached by an employer, or where an employer or other person has not complied with their legal obligations, and the worker has suffered an injury as a result.  

However, an injured worker will only be entitled to work injury damages if they are assessed to be of a permanent impairment of at least 15% whole person impairment – this could be by agreement with the insurer, or by assessment of the Personal Injury Commission. 

Employers are required to have workers compensation insurance for employees in their workplace. This insurance scheme covers: 

  • Casual and permanent employees;  
  • Full-time and part-time employees;  
  • Self-employed workers; and
  • People deemed to be workers.  

The types of injuries covered include: 

  • Injuries suffered at work, as a result of work or during work activities;  
  • Diseases caused by work;  
  • Pre-existing conditions or diseases aggravated by work;  
  • Injuries suffered while receiving medical treatment for a separate work injury; and 
  • Psychological and stress-related injuries. 

To prove negligence, the injured worker must show that:  

  • The defendant employer owed the injured worker a duty of care, meaning that the defendant employer was expected to take reasonable steps to look out for the injured worker’s safety; and  
  • The defendant employer breached this duty of care owed to the injured worker, meaning that the defendant employer either did something that caused the worker’s injury, or failed to do something that could have reasonably prevented the worker’s injury. 

If a person can prove that they have suffered a serious injury as a result of an employer’s negligence, they can be entitled to compensation for:  

  • Past economic loss; 
  • Past Superannuation entitlements;  
  • Future economic loss; and 
  • Future Superannuation entitlements.  

Factors that may impact the amount of compensation a person may be entitled to are mainly regarding the gap between the person’s predicted life path and their new life path after suffering the injury.  

Time Limits

In New South Wales, an injured worker has three (3) years from the date of injury to commence proceedings.  

In circumstances of serious personal injury resulting in long-term permanent impairment, or the death of family member, a claim can be made after the 3 year time limitation period if reasonable cause can be proven.  

Superannuation and Disability Insurance

If a person is unable to work due to illness or injury, they may be entitled to benefits through their superannuation or other insurance policies. Contact Littles Lawyers to discuss your eligibility to make an insurance claim.  

Emily Wright and our team are specialist personal injury lawyers who can assist you with your claim on a ‘No Win No Fee’ basis. If you would like advice in relation to a personal injury claim, please reach out to Emily Wright and Littles Lawyers today.  

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