Work-related injury

Contributed by ShannonCoetzee and current to 1 May 2016

Northern Territory Scheme

In the Northern Territory, a worker who suffers an injury or illness resulting in their incapacity to work, related medical treatment and/or permanent impairment may be entitled to compensation and benefits to assist them in returning to suitable work. If a worker dies as a result of a work injury or illness, the deceased worker's dependents at the time of their death may be entitled to compensation and benefits. The workers' compensation scheme in the Northern Territory is established by legislation, the Return to Work Act ("RTW Act") and the Return to Work Regulations ("RTW Regulations").

Following a comprehensive review of the existing Workers Rehabilitation and Compensation Act (NT) in 2014, significant amendments were made to the NT compensation scheme. Prior to this, the last review was undertaken in 1984 and while there had been some reviews of specific issues, the NT compensation scheme was out of step with other jurisdictions. The amendments were set out in two parts: the Workers Rehabilitation and Compensation Legislation Amendment Bill and the Return to Work Legislation Amendment Bill. The Workers Rehabilitation and Compensation Act was passed in March 2015 and came into effect on 1 July 2015; and the Return to Work Act was passed in August 2015 and came into effect on 1 October 2015.

The benefits available to an injured worker include:

• weekly benefits for less seriously injured workers for a maximum of five years, with payment of medical and treatment until 12 months after that date
• weekly benefits for permanent disability until pension eligibility age, with payment of medical and treatment costs for life
• payment for family counselling for the injured worker or the worker's family
• amounts payable in the event of the death of a worker as a result of an injury.

The purpose of the amendments were to get injured workers back to suitable work, reduce the cost for businesses and maintain the long-term viability of the NT compensation scheme, while providing reasonable financial support to injured workers.

This section deals primarily with the operation of the RTW Act and the benefits it makes available.

Legislation

Workers Rehabilitation and Compensation Act

The legislation made the following significant changes:

• Legislation name change to the Return to Work Act;
• Presumptive legislation for firefighters and volunteers of the NT Police, Fire & Emergence Services and Bushfires NT. The legislation establishes a rebuttable presumption that partcular forms of cancer developed by career and volunteer fire fighters are work related. Under the presumption, if a fire fighter is diagnosed with one of the 12 cancers identified in the Act and served as a firefighter for the relevant qualifying period, it will be presumed that the cancer is an occupational disease and therefore compensable;
• Definition of worker consistent with Australian Taxation Office requirements;
• Increased period of compensation for older workers to 104 weeks compensation instead of 26 weeks;
• Five year cap on weekly benefits for less serious injuries, with medical and treatment costs to end 12 months after that date. However, claimants who are assessed as having significant, permanent impairment of 15% or more retain the existing entitlement of weekly benefits until their pension eligibility age and entitlement to medical and treatment costs for life;
• Increase in death and funeral benefits, in addition to creating a new benefit for counselling for dependent family members of a deceased worker;
• Exclusion of stroke and heart attack claims, unless the employment was the major contributor to the underlying disease and the cause of the condition;
• Capping the calculation for normal weekly earnings; and
• Clarification on when compensation payments are reduced to 75% of normal weekly earnings

The amendments were intended to provide increased transparency, better claims management and improved communication with injured workers.

Return to Work Act

The RTW Act is intended to get injured workers back to suitable work by including a requirement for employers to produce a return to work plan for any injury that involves incapacity of more than 28 days.

The legislation made the following significant changes:

• Payment of reasonable expenses for family counselling;
• Reasonable payment for medical and rehabilitation costs during deferment;
• Mental stress claims;
• Formal notice be provided to the worker of any pending step down or calculation;
• Payment of legal advice at mediation;
• Formal notice to be provided to the worker of any pending step down or calculation;
• Payment of legal advice at mediation;
• Negotiated settlements;
• Settlement of dispute claims;
• Exclusion of journey claims;
• Enforcement of compulsory insurance provisions by ability to stop work;
• Involvement of support persons at mediation; and
• Improving return to work outcomes

Worker

Who is a 'worker'?

To be entitled to the workers' compensation benefits, you must be a worker as defined by the legislation. From 1 July 2015, changes were made to the definition of a worker for the purpose of the NT workers' compensation. The PAYG test has been applied to bring this definition in line with the Australian Taxation Office ("ATO") laws.

A worker is defined as:

Who is not a 'worker'?

A number of categories of workers are excluded from the entitlement to claim workers' compensation. Examples of individuals who are not considered to be a worker for the purpose of the NT workers' compensation include:

• immediate family member of the employer is not considered to be a worker for that employer unless that family member declares to the insurer their name, nature of employment and remuneration
• a director or an individual in a similar position of a company is not considered a worker of that business unless that director declares to the insurer their name, nature of employment and remuneration. A director is also required to have PAYG deductions made from their remuneration
• a volunteer who receives only reasonable travelling, accommodation or other out of pocket expenses
• an individual employed by a household unless that individual is employed as a chauffeur, cook, cleaner or gardener and earns more than 20% of the NT average weekly earnings, they are then considered to be a worker.

Illness and injury

What is an injury?

Once it has been established that the person claiming workers' compensation is a worker, it is necessary to establish that the worker suffered an injury as defined by the legislation. Section 3A of the RTW Act states that an "injury", in relation to a worker, is either:

• physical or mental injury

• disease
• aggravation, acceleration, exacerbation, recurrence or deterioration of a pre-existing injury or disease.

It can be a fairly simple task to establish whether a worker has suffered an injury if an identifiable incident or traumatic event occurred that resulted in either external damage to the worker (such as a fall at work resulting in a broken limb, cuts, burns or abrasions) or internal damage to the worker (such as slipped disc or hernia). This task of establishing whether a worker has suffered an injury becomes more difficult when there has been no identifiable incident or particular traumatic event or where a worker suffers from a particular disease that could equally be attributed to non-work factors.

Section 4(5) of the RTW Act deems an injury to arise out of the course of employment where it occurred by way of a gradual process over a period of time and the employment in which the worker was employed at any time during that period materially contributed to the injury.

Disease

Unlike in the case of an external injury, the worker needs to show that their employment materially contributed to a disease.

Section 4 of the RTW Act imposes additional conditions on disease claims. These are:

• the employment materially contributed to the aggravation, acceleration or exacerbation of the disease.
• material contribution requires the employment to be the real, proximate or effective cause of the disease.

The RTWA deems certain diseases to have been contracted by a worker in the course of his or her employment (unless the contrary is established) and those diseases are set out in Schedule 2 of the RTW Regulations.

Depending on the facts and medical evidence, some diseases may become an injury. A disease injury has broad implications, potentially relieving the worker from proving material contribution to work, and encompasses any form of illness, including mental illness (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626).

Psychological and psychiatric injuries

Identifiable incidents, stressful or traumatic events at work may cause various emotional and psychological reactions. Emotional impulses are strong feelings, however they do not cause a person to become dysfunctional (Yates v South Kirby Collieries Limited [1910] UKLawRpKQB 123; [1910] 2 KB 538). A worker needs to show that their employment materially contributed to a psychological effect, rather than a mere emotional impulse; for example a medical diagnosis of depression, anxiety or post-traumatic stress disorder.

As with external injury and disease, a psychological or psychiatric injury is only compensable if it arose out of or in the course of the worker's employment. Claims of this nature are generally not accepted if they are related to reasonable action taken by the employer in relation to dismissal, retrenchment, transfer, performance appraisal, disciplinary action or deployment. An employer bears the onus of proving that their actions or proposed actions were reasonable.

Motor vehicle accidents

A significant exclusion is where a worker is injured in a motor vehicle accident. Workers, who drive in the course of their work, such as couriers, sales representatives, estate agents or anybody making a trip as part of their work, are covered under the RTW Act in the event of an accident. However, injuries from motor vehicle accidents while on a normal journey travelling to or from work are not covered by the RTW Act as all 'journey claims' motor vehicle accidents are dealt with under the Motor Accidents (Compensation) Act (MACA) (see Motor vehicle accidents ).

The RTW Act provides that accident has the same meaning as in MACA as an occurrence caused by or arising out of a motor vehicle (with the vehicle being driven or moving out of control or a collision or action to avoid a collision with the motor vehicle) that results in the death or injury to a person.

Recess claims

If a worker is temporarily absent from the workplace during an ordinary recess or authorised absence, such as a tea break or lunch break, the worker will be covered under the RTW Act if injured while on the recess or absence. The RTW Act deems the injury to have arisen out of or in the course of employment, despite the fact that it occurred during a temporary absence, unless the worker voluntarily submits to an abnormal risk of injury.

Compensation

Weekly payments - first 26 weeks (6 months) of incapacity

If a worker is incapacitated for work due to a work injury and the insurer accepts liability for the worker's claim, then the worker will be entitled to weekly payments of compensation for that incapacity commencing within three working days of the decision to accept the claim.

According to section 64 of the RTW Act, during the first 26 weeks of incapacity flowing from a work-related injury a worker unable to attend work is entitled to receive weekly payments of compensation at a rate equal to their normal weekly earnings ("NWE"). If a worker has a work capacity and returns to work on limited hours, then the compensation becomes the NWE less any income received for that work.

Section 49A of the RTW Act provides that NWE is the gross remuneration paid to a worker and includes:

• overtime, where overtime was worked in accordance with a regular and established pattern
• shift allowance, where shift allowance was worked in accordance with a regular and established pattern
• over-award payments received by the worker
• climate allowance
• district allowance
• leading hand allowance
• qualification allowance
• service grant

Employer contributions to superannuation are not included in the NWE calculations, under section 49 of the RTW Act.

Non-cash benefits, such as electricity, meals or accommodation provided to the worker in a form other than an amount of money paid or credited to the worker, as are capped at 35% of average weekly earnings. These non-cash benefits do not apply to fly-in-fly-out or drive-in-drive-out workers.

A worker who has two or more jobs is entitled to include the remuneration from their other jobs provided that they were employed in the other jobs for at lease six weeks prior to the injury.

Weekly payments - after 26 weeks & long term incapacity

If incapacity persists beyond 26 weeks, weekly payments drop to 75% of the worker's loss of earning capacity. Loss of earning capacity is calculated as the NWE less the amount the worker is reasonably capable of earning in a week; or 150% of average weekly earnings (set each year by the Work Health Authority), whichever is less (RTW Act, s 65).

Section 61B of the RTW Act states that formal notice is to be provided to the worker that their weekly payments will be stepped down to 75%, the step down does not take effect until 14 days after the worker has been notified.

Entitlement changes after 104 weeks (2 years)

This applies to a worker who has a long term incapacity for work (longer than 26 weeks), can be deemed to have an earning capacity. Up until 104 weeks of incapacity has elapsed, suitable employment must be reasonably available.

After 104 weeks of total or partial incapacity, the worker, assessed by medical practitioners and allied professionals, may be deemed to have an earning capacity in the most profitable employment (including self-employment), whether or not such employment is available to the worker. The workers entitlements may be reduced or ceased accordingly.

Capping of weekly benefits to 260 weeks (5 years)

Workers injured on or after 1 July 2015, are limited to weekly benefits for the duration to 260 weeks (not calendar weeks), with medical and treatment costs to end 12 months after that date.

However, workers who are assessed as having a permanent impairment of 15% or more will retain the entitlement of weekly benefits until their pension eligibility age, with medical and treatment costs for life.

Interest on late payments

Where a weekly payment owed by an employer is late by more than seven days after the week in which compensation was due, interest is determined by a prescribed formula, RTW Act s 89.

Medical expenses

Expenses for medical treatment must be met by an insurer/employer if they are reasonably incurred, RTW Act s 73.

Medical expenses include:

• medical, surgical and rehabilitation treatment
• hospitalisation (public or private)
• pharmaceutical expenses
• transport to and from any treatment place or hospitalisation, including a kilometre allowance for use of a private vehicle
• accommodation costs incurred while attending treatment away from residence
• upgrading job skills or retraining expenses
• workplace, vehicle and home modifications to accommodate injury
• household help
• attendant care services

Where medical, surgical or rehabilitation treatment is given by or recommended by the worker's treating medical practitioner, the insurer/employer may not suspend or refuse the treatment unless there is a dispute that the treatment relates to the work related injury, or there is a dispute based on a supporting medical opinion held by the employer.

Rehabilitation

The RTW Act is designed to promote the return to work of the worker. All kinds of rehabilitative services can be provided, from medical and physiotherapy treatment to vehicle modifications, retraining and assistance with household help. The cost of these services must met by the employer/insurer, as long as the expenses are reasonably incurred.

Reasonable expenses for family counselling

There is a benefit for counselling for the worker and the worker's family members with the intention that better outcomes will assist the rehabilitation process. The amount payable is a maximum of 1.5 times the average weekly earnings.

Return to Work

The most important outcome in workers' compensation is to get injured workers back to suitable work. To help achieve this, under section 75A of the RTW Act, the employer must:

• take all reasonable steps to provide the injured worker with suitable employment
• take reasonable steps to participate in efforts to retain the injured worker
• assist the injured worker with their rehabilitation program
• give the injured worker a written proposal for a return to work plan within seven days after the employer becomes aware that the worker's incapacity is likely to exceed 28 days

Making a claim

A worker has six (6) months to lodge a claim for compensation from the date of the injury. There are procedures for the initial notification of the injury, making and handling claim and disputing liability for claims.

This claims process is to ensure:

• worker's injury is managed promptly
• timely, safe and durable return to work as early as possible after the injury
• certainty and proper income support while worker is incapacitated
• efficient processing of claims to reduce disputes

Notice of injury

Only one claim needs to be submitted for any particular injury, so that if, for example, a worker returns to work, but suffers a relapse requiring weekly payments to recommence, a new claim doesn't have to be completed.

A worker who sustains a work-related injury must notify their employer of the injury as soon as practicable, RTW Act s.80(1). Except in special circumstances, a worker may not make a claim for compensation unless the employer has been notified of the injury as soon as possible after the injury.

Notification may be made:

• verbally or in writing and may be given via the worker's supervisor or other designated person
• within six months of the date that the injury occurs

Claim form

The worker must also complete and submit to the employer a Northern Territory workers compensation claim form which can be found on the NT WorkSafe website ( www.worksafe.nt.gov.au). The worker must complete the relevant parts of the claim form and submit it to the employer, with a Statement of Fitness for Work - First Certificate from a doctor, if the claim is for loss of income, or the receipt, if the claim is for medical expenses.

An employer is, on request, obliged to provide a worker with insurance details, including their insurer's name, and access to relevant policy documents, RTW Act s.175. An employer commits a criminal offence if they refuse to receive a claim for compensation or they dismiss an employee because they have given notice of their intention to claim for compensation RTW Act s.84(4).

The employer must then complete the relevant parts of the claim form and submit it to their workers compensation insurance company within three (3) working days of receiving the claim from the worker.

How a claim is determined

The insurer then makes an initial decision on the claim within ten (10) working days of the employer receiving it. On the employer's behalf, the insurer manages and makes all the decisions regarding the claim. The insurer's decision will be to either accept, reject or defer liability.

Accept liability

Once a claim is accepted, the worker is entitled to receive benefits payable under the RTW Act. Benefits will include lost earnings, reasonable medical and rehabilitation expenses.

Reject liability

An employer/insurer who disputes liability for a claim must send the claimant a notice in writing advising of the rejection. In the notice they must provide the reasons for the rejection in a way that enables the claimant to understand fully why the claim has been rejected.

Defer liability

Deferral gives the insurer 56 days (from the date of the decision to defer) to obtain further information, however, the final decision to accept or dispute the claim must be made before the 56 days have expired.

During the deferral period, the worker is entitled to weekly compensation and reasonable medical and rehabilitation expenses. This benefit excludes hospitalisation (including surgery while hospitalised) and interstate travel or evacuations. The payments are without prejudice; that is, they do not mean that the employer admits liability.

Dispute Resolution

If a worker does not agree with an insurer's decision to dispute liability for a claim, the worker may have the decision reviewed.

Internal Dispute Resolution

All insurers' offer an Internal Dispute Resolution Process (IDRP) which provides a five (5) day response time to a worker for a review of the decision made on the claim. Following the review, the insurer may either reverse or confirm the decision to dispute the claim.

Mediating disputes

Where a worker is aggrieved by an insurer's decision, the worker can apply to the Work Health Authority (NT WorkSafe) to have a dispute referred to mediation. To apply, the worker needs simply to contact the authority and make a written request. Proceedings in the Work Health Court cannot commence unless there has been an attempt to resolve the dispute by mediation.

Once an application is received, the authority has seven (7) days to refer the dispute to a mediator. The mediator must then attempt to resolve the dispute within 28 days of receiving a referral, RTW Act s.103D.

The RTW Act sets out a number of detailed provisions about the way mediations are to be conducted, including such matters as legal representation, costs, who is to attend, and the form mediation is to take. A party who refuses, without reasonable excuse, to attend mediation or provide information to a mediator is guilty of an offence and may be prosecuted and fined.

Parties are required to provide all written medical reports and other specified written material, relating to the disputed matter, to NT WorkSafe so they can be considered during the mediation process. The mediation process must then be completed within 21 days.

Proceedings are informal and neither the worker nor the employer/insurer is entitled to have legal representation during mediation unless the mediator agrees that legal representation will facilitate the mediation process, RTW Act s.103F. Examples of where this benefit might apply are complex matters or where a worker is disadvantaged by language, culture or life experience. The benefit for legal advice will only be available for matters that relate to new claim decisions or claims involving a reduction or cancellation of weekly compensation benefits.

The worker also has the option of being represented by a more experienced family member, union representative or other experienced advocate, so long as the mediator agrees that it will facilitate the mediation process.

Deemed acceptance

If a worker serves an employer with a claim form and a Statement of Fitness for Work - First Certificate from a doctor, and receives no response within the 10 working day period allowed, the employer is deemed to have accepted the claim until either 14 days after the employer/insurer notifies the claimant of their decision on the claim form or the court makes an order, RTW Act s.87. This procedure only applies in situations where a claim is deemed accepted because the employer has failed to comply with time limits. The 14 days runs from the time the notice is sent out.

The Work Health Court

Court hearings

The Work Health Court hears claims for compensation or disputes about any matter incidental to or arising out of a claim, including situations where:

• an employer has disputed liability for a worker's claim
• an employer has cancelled or reduced a worker's weekly payments
• an employer/insurer has rejected a claim for compensation, medical or rehabilitation costs.

When an employer refuses to pay compensation, a worker can apply to the Work Health Court to have it review the decision, provided that an attempt has been made to resolve the dispute through mediation. An application to the Work Health Court must be made within 28 days of receipt of the certificate of mediation, RTW Act s.104(3), although the Court has the power to extend the 28 day limit.

Cases are heard in the Local Court sitting as the Work Health Court. Hearings are open to the public and witnesses are generally called to give evidence and to be cross-examined by either party.

Prior to a hearing, a settlement or directions conference takes place, giving parties an opportunity to resolve matters out of court, RTW Act s.106. However, proceedings are generally formal and employers or their insurers invariably have their lawyers present. Cases are rarely settled at these conferences, although the matters in dispute are sometimes narrowed, making for a shorter hearing time.

If the registrar of the court considers it appropriate, a formal settlement conference may also be held.

Cases are sometimes settled at these conferences or at a later time after discussion between the lawyers for the parties. Many cases are settled before they are heard by a magistrate.

Pre-trial procedures include pleadings (court documents setting out the claim and grounds of defence of each party), discovery (providing the other party with a copy of all relevant documentation) and interrogatories (answering questions about the case on oath as if the party was in the witness box). Procedural details are set out in the Work Health Court Rules and, given the complexity of proceedings, legal representation is strongly recommended.

Appeals

In certain circumstances, the RTW Act allows a worker or an employer to appeal a decision of the Work Health Court to the Supreme Court, s.116. However, appeals are restricted to questions of law.

Interim payments

Where a worker has applied to the court but their claim has not yet been heard, the court can make an interim order for weekly compensation payments to be made pending the outcome of the final hearing, s.107. Interim payments can only be given for a specified period, which is limited to a maximum of 10 weeks before and 12 weeks after the date of the order. Further orders for interim payments can only be made in cases of undue hardship or other exceptional circumstances. Before making such an order, the court considers a number of matters, such as the merits of the case and the worker's circumstances. If a worker loses their case, interim payments may be recovered by the employer/insurer.

Termination of payments

Weekly payments cannot simply be stopped or reduced by an employer or the insurer - specific procedures must be followed, RTW Act s.69. The employer/insurer must give 14 days notice of intention to cancel or reduce compensation. This notice has to include:

• a statement setting out reasons for the cancellation or reduction
• a statement indicating a worker's right to refer the matter to the Work Health Authority for mediation within 90 days of receiving the statement
• a statement to the effect that if the worker wishes to appeal the decision to the court they must do so within 28 days of receiving a mediation certificate.

Payments may be cancelled or reduced where a worker has been declared fit for work, in which case a medical certificate to this effect must accompany the notice to cancel or reduce payments, RTW Act s.69(3).

Weekly payments may be terminated without notice, RTW Act s.69(2) where:

• the person receiving the compensation returns to work or dies;
• the employer requests a statement of fitness for work under s.91A and the worker does not provide it within 14 days;
• the worker has not returned to work by the date specified on the original statement of fitness for work where that date was less than four weeks from the date of the injury and no additional statement of fitness for work provided;
• the compensation payments were obtained by fraud or by other unlawful means; or
• the court orders the compensation payments to be cancelled or reduced.

Being investigated by an insurer

Basically, in the NT there are no limits to the rights of insurers to employ investigators to film workers who have made or are making claims under the RTW Act. Surveillance is commonplace, and all workers involved in a dispute with the insurer can expect to be filmed or investigated. The only limits are those imposed by the common law or general statutes; for example, an investigator cannot trespass on a worker's land or home, damage any of the worker's property, or assault a worker. An investigator is entitled to film the worker at their home as long as the investigator does not break any law.

Misconduct and disentitling activities

Where a person's work injury has been caused by their own carelessness or misconduct, compensation may be reduced or not paid at all. The following situations are dealt with by the RTW Act:

• Ignoring instructions: a worker who sustains an injury while working in breach of a workplace regulation or who has acted without instructions from their employer, s.4(4), is still entitled to compensation as long as they were engaged in an act for the purposes of and in connection with the employer's trade or business at the time of the incident. For example, a worker injured after ignoring a safety procedure in an effort to complete a job quickly would still be eligible for compensation.
• Self-inflicted injury: no compensation is payable if an injury is self-inflicted and deliberate, s.57(1)(a).
• Serious and wilful misconduct: no compensation is payable to a worker if the injury is caused by their own serious and wilful misconduct, unless the injury results in death or permanent or long-term incapacity, s.57(1)(b).
• Driving under the influence of alcohol: in the case of a motor vehicle accident within the operation of the RTW Act (see Illness and injury), no weekly benefits or lump sums for permanent injury are payable where the worker is the driver of the vehicle involved in the accident and their consumption of alcohol or drugs has materially contributed to the accident. However, medical expenses and death benefits are still payable, s.60(3). If the worker's blood alcohol concentration is over 0.08, the worker has to show that their consumption of liquor did not materially contribute to the accident that caused the injury, s.60(2).

Federal government employees

Any person employed by the Federal Government or by one of its prescribed authorities, such as Australia Post, has, under the Safety Rehabilitation and Compensation Act 1988 (Cth), similar rights to compensation as dealt with above. This Act is similar to State and Territory Acts, but with a number of important procedural differences. In all cases under the Commonwealth Act, a worker first completes a claim form. The case is then investigated by the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (COMCARE) (see Contact points ). A COMCARE delegate then issues a determination which states whether liability is accepted and, if so, the amount of compensation to be paid.

A worker who is dissatisfied with COMCARE's determination can ask to have their application reconsidered or the determination reviewed by the Commonwealth Administrative Appeals Tribunal. In either instance, legal or trade union advice should be sought.