Archive for July, 2019

What does “Exempt Worker” mean?

Posted on: July 22nd, 2019 by Development

By Pania Watt












In NSW, major changes were made to the workers compensation scheme in amendments to the Workers Compensation Act 1987 in 2012, and again in 2015. An “exempt worker” describes those classes of worker to whom these changes do not apply.

An exempt worker, being a worker who is exempt from the amendments, is a person who is employed as one of the following in NSW:

1. Police Officer;

2. Paramedic; or

3. Fire fighter.

In other words, an “exempt worker” is an Emergency Services Worker.

There are significant differences between the compensation payable to exempt workers as opposed to other workers in NSW. These differences are, briefly, as follows:


Lump sum compensation

–   The minimum level of whole person impairment is 1% for an exempt worker, whereas the threshold is 11% for other types of worker.

–   The threshold of 15% whole person impairment for a psychiatric injury applies to both types of worker.

–   Exempt workers who are assessed with 10% or more whole person impairment are still entitled to claim an extra amount of lump sum compensation for “pain and suffering”, up to a maximum of $50,000, under section 67 of the Act. The 2012 amendments to the Act removed that entitlement from other types of workers.

–  The 2015 amendments however increased the maximum lump sum payment for permanent impairment injuries from $220,000 to $577,050, and allowed for the amount of those payments to be indexed annually. These amendments apply to all types of worker but exempt workers.


Weekly compensation

–  Weekly payments of compensation are payable to an exempt worker whilst ever he or she suffers a partial or total incapacity for work. Such payments can be made up to the age of 67, plus one year. Other types of worker will in most cases, be restricted to payments for a maximum of 5 years in total.

–  For the first 26 weeks (6 months) of weekly payments, an exempt worker will receive benefits based upon the award which applies to his or her job.

–  After the first 26 weeks of weekly payments, exempt workers who remain partially or totally unfit for work will be paid a fixed rate referred to as the “statutory maximum” rate. As at the date of writing, the statutory maximum for a single worker with no dependants is $512.10 gross.

–  Exempt workers cannot receive Work Capacity Decisions, as this type of decision may only be made in relation to other types of worker. If the insurer wishes to decrease, or stop, payments of weekly compensation to an exempt worker, it may only do so by issue of a declinature notice.


Medical expenses

–  There is no restriction on how long an exempt worker can claim medical expenses relating to his or her injury. Even if he or she has returned to work, and the insurer is no longer paying weekly benefits, medical expenses may still be claimed. An exempt worker also does not have to meet a certain threshold of whole person impairment in order to continue claiming medical expenses.


Legal costs

–  Exempt workers requiring legal advice and representation in relation to a workers compensation claim will be entitled to recover their costs from the insurer on the successful conclusion of the matter.

–  It is not necessary for an exempt worker to be represented by their union solicitor to be able to recover their costs. A union lawyer doesn’t have any advantages over any other lawyer, and in many circumstances, does not have an office near to where the exempt worker lives and works.

–  At Bourke Love Lawyers, we represent exempt workers in relation to their workers compensation claims on a no win, no pay basis. We will also pay for the clinical records and medical reports required to evidence the case, and these costs are recoverable from the insurer when the case is resolved. We specialise in workers compensation claims for exempt workers, in particular those suffering psychiatric injury as a result of workplace trauma.


The NSW workers compensation system is not easy to understand, and it can be very difficult to work out whether the correct benefits are being paid. Knowing where to go to get advice, and most importantly, knowing that free, independent legal advice is available to all exempt workers, is invaluable.


The information in this blog is not intended to be legal advice, and should not be taken as such. If you have any queries, contact us now on 1300 15 15 45 to discuss your specific circumstances.

All initial consults with our firm are free of charge and all of our services are No Win, No Pay, with the exception of NSW workers compensation claims, which are funded by WIRO and therefore free to all non-exempt workers covered by the NSW workers compensation scheme.

To know more information, feel free to contact us here.

Returning to work after a work related injury? Here’s 5 hot tips to ensure you get the most out of your claim

Posted on: July 15th, 2019 by Development

By Pania Watt












The NSW workers compensation scheme is complicated, particularly if you fall within the class of workers affected by the 2012 amendments to the Workers Compensation Act 1987. If you’re not sure whether this is you (a work related injury) or not, you will be in that class if you are not a Paramedic, a Firefighter or a Police Officer. If you are one of these types of workers, you are exempt from the amendments. See our other blog posts on what exempt workers can expect from the scheme.

If you are a worker affected by the amendments, it’s very important that you pay careful attention to the management of your claim while you are returning to work.


Hot tip # 1 – Your Nominated Treating Doctor is very important

I can’t emphasise enough how vital it is to have a trusting relationship with your doctor. He or she is the “gateway” to your path to recovery. You must be able to speak openly, and honestly with your doctor about the issues you are facing during your return to work, because your doctor will be completing your Certificate of Capacity for the insurer.

If you have suffered a psychiatric injury, you may wish to consider asking your treating Psychiatrist to be your Nominated Treating Doctor, rather than your General Practitioner. Psychiatric injuries are very specific and can be complicated, so in those circumstances the assessment of treatment required and capacity for work may best be completed by your treating Psychiatrist.


Hot tip # 2 – The Certificate of Capacity must be completed carefully

The Certificate of Capacity is a very important document. Not only does it confirm your doctor’s view that your injury is work related, it tells the insurer what treatment is required, and most importantly, it tells the insurer what your capacity for work is.

Even if you are fit for full-time work, the certificate still tells the insurer what treatment you need, and any restrictions which apply to your capacity for work.

If you think your doctor may not understand the requirements of your specific job, I recommend that you obtain a Job Description from your employer – as this is essential in a work-related injury claim. If you don’t have one, write down all of your duties at work, and give it to your doctor. He or she will appreciate understanding what you will be required to do when you return to work, and in particular, have an understanding of what “Pre Injury Duties” means. More on this below.


Hot tip #3 – Pre Injury Duties means no restrictions whatsoever – nothing, nada, zero

At some point during your claim, you may reach full pre-injury hours, but still need to observe some restrictions in relation to your injury. At this stage, your doctor may suggest to you that you are now fit for “Pre Injury Duties” and want to tick that box on your Certificate of Capacity.

It is important that you understand what being “being fit for Pre Injury Duties” means.

It means that you can return to your pre-injury job, with no restrictions whatsoever, now and in the future.

How this could go is illustrated in the below examples.

Example A:

Andy is a labourer who sustains an injury to his right shoulder. Following surgery and physiotherapy, his right shoulder has stabilised and he is able to return to work as a labourer, but he will never be able to work more than 20 hours per week or lift more than 10 kilograms using his right arm. His doctor says this restriction will be permanent, and provides him with a certificate certifying that he is permanently fit for 4 hours per day, 5 days per week, with a permanent restriction to not lift any weight of more than 10 kilograms using his right arm. Andy continues to receive benefits from the workers compensation insurer on the basis of that certificate, which support him and allow him to continue working in a job that he enjoys, despite his injury.

Example B:

Rachael is a process worker who sustains an injury to her lower back. She undergoes surgery and has a very good result following rehabilitation, and she is keen to get back to work at the meatworks. Her doctor provides her with a certificate certifying her fit for pre-injury duties. When Rachael submits the certificate to the insurer, she is told that because she is fit for pre-injury duties, she has no incapacity for work, and therefore no entitlement to weekly benefits. Her payments are therefore ceased, even though she has not yet attempted a return to work and is not sure whether she will be able to manage working on the line for even half of her pre-injury hours.

Let me be clear – getting back to work is an important stepping stone in your recovery from a work related injury. Don’t let it be derailed by not understanding the meaning of “Pre Injury Duties” and how that might affect your claim.


Hot tip #4 – DO NOT let your Certificate of Capacity lapse

I can’t emphasise this enough.

A Certificate of Capacity is usually only able to be provided for a maximum of 28 days. The only exception to this is if you have a long term, chronic injury and the insurer has agreed that your doctor can provide a certificate at longer intervals of up to 3, 6 or even 12 months.

An important part of the Certificate of Capacity is that it tells the insurer what your capacity for work is for the period it covers, and the insurer will pay your weekly benefit accordingly. If you don’t provide a Certificate of Capacity, the insurer will not pay you. If you provide a certificate late, or back dated, you may find yourself in a complicated argument with the insurer over whether you can be paid your benefit for a disputed period.

Avoid all of this drama. When you are leaving your doctor’s surgery after obtaining your certificate, stop at the receptionist’s desk and book your next appointment for the day before your certificate expires. Send your certificate straight to the insurer. By email is best, so that you have a record of it being sent, and you have a copy in your email account in case of any dispute.


Hot tip #5 – The rehabilitation adviser does not have the right to attend all of your treatment appointments

I frequently hear from my clients that the rehabilitation adviser appointed to manage their work-related injury claim has been attending all of my client’s appointments with their doctors. I have been told by clients of rehabilitation advisers arguing with doctors, including treating surgeons, about their recommendations for treatment, or assessment of capacity for work, arranging treatment appointments for my client, changing my client’s appointment dates and times with their treating doctors to suit the adviser, and during those appointments aggressively insisting upon changes to my clients’ certificate of capacity.

This is, frankly, outrageous behaviour. Your consultations with your treating doctors are private. Sometimes, depending on the type of injury you have sustained, you may need to remove your clothing for examination. Sometimes, you might want to discuss matters in a full, and frank manner, one on one with your doctor. That is your right.

A rehabilitation adviser is only entitled to attend appointments which are case conferences. These are conferences which you, your doctor/s, the rehabilitation adviser, and the insurer attend, on a regular basis, to discuss your claim. Nothing else. If you want the rehabilitation adviser to attend other appointments with you, you are welcome to allow them to do so. If you don’t want to, all you need to do is say so.

Navigating your workers compensation rights and entitlements is difficult. If you’re in need of answers, direction and support with your workers compensation claim, contact us now on 1300 15 15 45 to discuss your specific circumstances.


The information in this blog is not intended to be legal advice, and should not be taken as such.

All initial consults with our firm are free of charge and all of our services are No Win, No Pay, with the exception of NSW workers compensation claims, which are funded by WIRO and therefore free to all non-exempt workers covered by the NSW workers compensation scheme.


Do you need more information about this? Simple contact us here anytime.


What does “minor injury” mean if I’ve had a motor vehicle accident?

Posted on: July 10th, 2019 by Development

By Pania Watt












If you have been injured in a car accident after 1 December 2017, the CTP insurer may have advised you that you have suffered a “minor injury”. If you’re not sure what this means, read on for more information.

The changes to the NSW CTP scheme which took effect on 1 December 2017 divided compensation payable to people injured in a motor vehicle accident between minor, and non-minor injuries.


What can a minor injury be?

A minor injury can be physical, or psychological.

An example of a minor physical injury is a soft tissue injury, which usually a muscular type injury. The most common soft tissue injury sustained in a motor vehicle accident is whiplash, which is an injury to the neck area sustained due to the force of an accident throwing your upper body/head quickly forwards and then quickly backwards.

An example of a minor psychological injury is adjustment disorder or acute stress disorder, which are both recognised psychological disorders resulting from being involved in, or witnessing traumatic events. Both disorders are injuries where you are expected to recover well and in a short period of time. If you don’t recover within the timeframe expected, the diagnosis of the injury may need to be changed.


When is an injury non-minor?

If your injury is more than a soft tissue injury, or a diagnosed psychiatric or psychological illness that is more than adjustment disorder or acute stress disorder, it is likely your injury will be classified as non-minor.

Non-minor physical injuries could include nerve injuries, ligament or cartilage injuries, fractured bones, or injuries to the spine with radiculopathy (also known as sciatica).

Non-minor psychological injuries could include depression or Post Traumatic Stress Disorder.


Who makes the decision?

The decision as to whether an injury is classified as minor is made by the CTP insurer, who will consider the medical evidence and the diagnosis given by your treating doctor in making the decision, and provide you with a “liability notice letter” within three months of your claim being lodged. The liability notice letter will tell you whether the insurer considers your injury is minor, or non-minor, and whether the insurer will agree to pay statutory benefits to you.

If you don’t agree with the insurer’s decision, you must lodge a request for the insurer to reconsider it (called an “internal review”) within 28 days of receiving the liability notice letter.

If you don’t agree with the insurer’s internal review, you can request SIRA’s Dispute Resolution Service to help you to resolve the dispute with the insurer.


What support can I get if I have a minor injury?

A person who has suffered a minor injury can expect support from the CTP insurer for a period of up to 26 weeks. For details of what that support might entail, see here.


The information in this blog is not intended to be legal advice, and should not be taken as such.

If you have had a motor vehicle accident, and you wish to make a claim for compensation, contact us now on 1300 15 15 45 to discuss your specific circumstances. All initial consults with our firm are free of charge and all of our services are No Win, No Pay, with the exception of NSW workers compensation claims, which are funded by WIRO and therefore free to all non-exempt workers covered by the NSW workers compensation scheme.


To find out more information, feel free to contact us here.

What is life insurance?

Posted on: July 1st, 2019 by Development

by Pania Watt

insurance claims










Life insurance is a policy of insurance intended to protect you, and your family, from suffering financial difficulty after a certain event – for example, if you get sick, suffer an injury, or pass away.


Types of Life Insurance

1. Total and Permanent Disablement (TPD) insurance is to provide financial support to you if you suffer an injury or illness which permanently prevents you from working to your normal retirement age. The funds paid to you are intended to help you to cover the cost of rehabilitation, including medical expenses, debt repayments and your future cost of living.

2. Income Protection insurance (also referred to as temporary salary continuance) is to replace your lost wages if you cannot work for a certain amount of time due to being sick or injured. The funds paid to you, normally on a monthly basis, are intended to help you to manage your day-to-day expenses whilst you are not working and receiving your normal wage.

3. Trauma insurance is to pay a set amount if you are diagnosed with a specific illness (for example, cancer, a specific heart condition, kidney failure). The funds paid to you, normally in a lump sum, are intended to help you manage the cost of medical treatment, specialised therapies, debt repayments, and also to provide an income stream (in circumstances where you do not also have Income Protection insurance).


How can you get a Life Insurance policy?

You can obtain a life insurance policy through your superannuation, as part of a “Group Life Policy”. It’s usually less expensive to hold a life insurance policy in this way, because superannuation funds purchase the policies in bulk. You also often don’t need to undergo any medical examinations in order to obtain insurance through your superannuation fund.

You can also purchase a life insurance policy:

1. From an insurance broker; or

2. From your financial adviser; or

3. Direct from the insurer.


How to claim

The first thing you need to do is find out whether you have any life insurance policies. At Bourke Love Lawyers, we often receive enquiries from people who have suffered an injury or illness affecting their capacity to work, who want to know if they can claim TPD or income protection, but aren’t sure whether they actually have a policy.

Bottom line – you can’t claim on a policy you don’t have.

Call your superannuation fund. Ask if you have any policies of insurance upon which you could claim. If you have more than one superannuation fund – call them all and ask the same question. While you generally cannot claim income protection on more than one policy at the same time, if you have more than one policy for TPD, critical illness, or trauma, you may be able to do just that.


Legal advice

Each policy of insurance is different, and understanding the definitions by which your entitlements will be determined is no easy feat.

You should be wary of organisations without legal training, certification or experience offering their advocacy services.

If you are looking for assistance, support and advice regarding your entitlement to claim on a life insurance policy, Bourke Love Lawyers can assist. We charge for the work that we do, not a flat percentage of your benefit, and all initial consults with our firm are free of charge.


The information in this blog is not intended to be legal advice, and should not be taken as such. If you have any queries, contact us now on 1300 15 15 45 to discuss your specific circumstances.

All of our services are No Win, No Pay, with the exception of NSW workers compensation claims, which are funded by WIRO and therefore free to all non-exempt workers covered by the NSW workers compensation scheme.