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Claiming WorkCover – Your Rights
People who are injured, or are made ill, by or at work are entitled to WorkCover. It does not matter whether you are permanent or casual, full time or part time, employed by the people where you work or by a labour hire company, you are entitled to claim WorkCover. If you suffer from a completely new injury or work related illness, or if a pre-existing or congenital condition is exacerbated by work you can claim WorkCover.
Under WorkCover you are entitled to weekly payments for time lost and payment of medical and like expenses.
WorkCover Medical Certificates
If you need time off work because of the injury/illness you need to have a medical form from a doctor on a special WorkCover Certificate of Capacity. The certificate does not have to come from a company doctor. You have a right to go to your own doctor for certificates and treatment, as a general rule it is better if you choose your own treating practitioners rather than the company dictating who is treating you. The first certificate for time off work cannot cover any more than 14 days.
WorkCover Claim Forms
You also have to fill in a WorkCover Claim Form. If you can’t get the form from work, you can get them from a post office. If you are employed by the company you lodge the form at work. If you get the work through a labour hire company you lodge the form with them. When you fill in the WorkCover form it makes a number of copies, one of these copies is meant to be given to you. You should keep it. It is a good idea to keep a photocopy of the WorkCover medical certificate as well. The claim for lost time on WorkCover is not considered to have been lodged until both the claim form and the WorkCover medical certificate have been handed to your employer.
It is illegal for an employer to refuse to accept claims for WorkCover. If you believe that your employer will not pass on your claim within 10 days you should send a copy to the claims agent, as well as giving it to your employer. The claim form comes in quadruplicate (4 copies) an original, an employer’s copy, a worker’s copy and one called ‘early notification copy’. You should be given the last two of these. The ‘early notification copy’ is the one that you send off to the Agent. If you don’t know who is the claims agent, you can find out who it is by ringing 9641 1444 or 1800 136 089. If your employer says they won’t accept it, contact your union organiser.
If you need less than 10 days off work your employer can decide to accept the claim. It falls within the ‘excess’ on the insurance. This means that they should be able to pay you normally. If you are going to be more than 10 days off work, or if the employer does not want to pay you for less than 10 days lost time, the employer has to pass the claim to the insurance company who is their WorkCover agent within 10 days from when you give it to them.
WorkCover Claims Agents
Once the insurer receives the claim, they have 28 days to say whether they accept or reject the claim. You might not get paid until a decision has been made. This makes it 38 days from when you have given the form to your employer (if they gave it to the insurer in the legally required time). If you needed to send a copy to the claims agent, as well as giving it to your employer, the 38 day time frame should still apply. If you don’t think that your employer will pass on your claim in time you should send a copy to the claims agent straight away.
While the claims agent is assessing the claim you may be able to access your sick leave or annual leave entitlements. Get your delegates (or organiser) to help you. You might need to go on to social security while these things are being sorted out if you don’t have access to any entitlements, eg if you are casual.
During the 28 days it is common for the agent to send you to a doctor of their choice for a second opinion. You must go, if you do not keep the appointment that they make for you your claim will not be processed. This doctor does not treat you or, necessarily, tell you what they think. They provide a report to the agent. It is also possible that the insurer may involve an investigation agent who will investigate the circumstances of the injury. You do not have to talk to an investigation agent, that is your choice. In most cases it is better not to speak to the investigators.
The insurer has to send you a letter notifying you, within 28 days from when the insurer gets the claim forms, whether the claim is accepted. If they reject the claim they have to give you reasons for doing so.
If the claim is accepted, you should be paid within 7 days. This payment is for the time that the WorkCover medical certificates have covered (so it may be for the 6 weeks if that is how long you have been off work). If you had to rely on social security to survive that has to be repaid. Usually the insurer or your employer ask you if you have claimed DSS and repay DSS directly and they pay you the difference between social security and your WorkCover weekly payments.
If the claim is rejected you have a right to appeal that decision. The first stage of this is to go through conciliation. You have to request a special form to appeal. You have 60 days to lodge a request for conciliation. It is usually about 4 weeks before you have a conciliation conference from when you lodged the request. Usually you need medical reports from your treating doctors (paid for by the insurer) for this process.
Conciliation conferences can involve a Conciliation Officer, the insurer, your employer, their adviser and you. You can have an assistant but in most cases you cannot have a lawyer as your assistant. If it is not possible to get a suitable outcome (that involves payment of your weekly payments and medical and like expenses) through the conciliation process you may be able to take the matter to court. It is possible for you to be sent to a panel of doctors called the medical panel, which would give a medical opinion that cannot be challenged even in the court in almost all cases.
The AMIEU Helps Members With Claims
As you can see all workers who are injured or ill as a result of work are entitled to WorkCover. However it is not always easy to find your way through the system and most workers need help. Members of the AMIEU can get help from us at every step in the process. We can tell you about your rights, help you to find good treatment, assist you with forms and be your advocates in the WorkCover system including conciliation. The AMIEU will provide you with an assistant in the conciliation process. It is never easy if you are injured at work, but AMIEU members are much better assisted than non-members.
Other WorkCover Benefits
If your injuries are permanent you may have further entitlements for “permanent impairment”. This means that there could be other benefits not covered by the original claim. If it comes to this the Union will point you in the right direction.