Employers are required to pay the super guarantee (currently 10.5%) on top of your ordinary time earnings ("OTE"). Workers compensation payments are not OTE (see ATO ruling SGR 2009/2) unless they are paid in respect of ordinary hours of work when you actually perform work or are required to attend work. Many modern awards, enterprise agreements and other registered agreements provide for superannuation contributions to be paid on top of workers compensation benefits. The terms of many Awards contain provisions requiring superannuation to be paid during periods of leave totaling up to 52 week ..read more

Under section 130(1) of the Fair Work Act 2009, there is no accrual of leave entitlements during a period where you are absent from work due to injury and receiving workers compensation payments (a compensation period). However, section 130(2) provides leave can accrue during a compensation period if the taking or accruing of leave is permitted by compensation law. Annual leave continues to accrue while you are still employed and receiving workers compensation benefits The Workers Compensation Act 1987 (NSW) is a "compensation law" which permits a worker to receive payment for both workers co ..read more

At common law, employers are expected to have a high standard of care for their worker's safety, reflecting the level of control an employer has over the worker, the system of work and the work premises. Workers expect that if they are injured due to their employer's fault, they will receive damages like anyone else who is injured. Sadly, that is not the case in NSW. Claims for damages against an employer are restricted by the Workers Compensation Act 1987. No matter how negligent the employer is, an injured worker cannot sue for damages unless they have at least 15% whole person impairment a ..read more

Workers Compensation payments are generally lower than a worker's normal wage and it can be hard to make ends meet. One way to stretch the budget is to use your annual leave or long service leave entitlements to top up your payments. Under section 49 of the NSW Workers Compensation Act 1987 weekly payments of compensation are payable for a period even if you receive annual leave or long service leave for the same period. If you are off work due to an injury you can apply for your accrued leave following your employer's usual procedures. An employer cannot unreasonably refuse your application ..read more

Section 19B contains a presumption that certain frontline workers contracted Covid 19 during the course of their employment. This presumption recognized the risk essential frontline workers were taking while the rest of us safely isolated at home. Has that provision resulted in employers paying compensation for a large number of workers who contracted Covid 19 outside of the workplace? Unlikely. Why? It is only a presumption that can be rebutted by evidence to the contrary. If contact tracers identified a different source of the infection for a particular worker, the employer could dispute th ..read more

In NSW Workers Compensation Claims, weekly payments for loss of wages are reduced by the worker’s “current weekly earnings”. “Current weekly earnings” is not limited to amounts actually earned by a worker, it also includes “the weekly amount that the worker is able to earn in suitable employment”. “Suitable employment” is defined in section 32A of the Workers Compensation Act and has been further explored in the case law. Generally, it is employment in work for which the worker is currently suited having regard to the available medical and other evidence about the worker’s incapacity and the ..read more

In Sara v G & S Sara Pty Ltd [2021] NSWPIC 286A the Personal Injury Commission awarded death benefits to the family of a worker who contracted Covid-19 overseas and subsequently died. The evidence established the deceased, who had travelled to New York for work, contracted Covid-19 while he was in the course of his employment with a NSW employer in the health care industry. Fortunately, the Workers Compensation Act 1987 was amended last year to include a presumption that Covid-19 is a work injury for people engaged in prescribed high risk jobs when the disease was contracted (eg. health c ..read more

Sometimes when I meet with injured workers they are anxious about disclosing something from their past medical history for fear it will adversely impact on their current claim. Often they are relieved to discover it isn't as much of an issue as they had imagined. A workplace injury is compensable even if it only aggravates, accelerates, exacerbates or deteriorates an underlying condition. As long as an accurate history is provided to the medical experts, they can explain the relevance, if any, of the past condition to the current claim. The problem with failing to disclose prior complaints to ..read more

Many people assume their memories are like video recordings of events, stored away for future viewing. However, it is generally accepted among the scientific community that the human memory is not perfect and over time our recollection of events can fade while our imagination fills in the gaps. It is for that reason judges and other decision makers often give more weight to information taken down in writing immediately after the accident than your recollection of events years later. A recent case in the Personal Injury Commission highlights the dangers of relying on doctors and other third pa ..read more

In New South Wales permanent impairment thresholds determine what access a worker will have to statutory benefits and even whether claim for damages can be made. Generally there can only be one assessment of permanent impairment for all purposes so it is important to understand what injuries can be combined to reach these impairment thresholds. In assessing the degree of permanent impairment that results from an injury, it is generally accepted that: All impairments resulting from the same injurious event are assessed together; and Impairments resulting from the same pathology are assessed t ..read more