Indexation to Weekly Entitlements
Every year on the 1st July there is an indexation of WorkCover entitlements. This flows through to workers on long term payments on the anniversary of your injury. From 1st July 2005 weekly entitlements (for injuries that occurred after 12th November 1997) are capped at:
No Current Work Capacity - $1150.00 A Current Work Capacity - $ 688.00 (after 13 weeks)
Don’t forget that pre injury average weekly earnings (piawe) are calculated by averaging wages (including regular overtime and shift penalties and tally) for the first 26 weeks. After week 26 piawe is based on ordinary time (including average tally but not overtime and penalties).
For the first 13 weeks WorkCover Weekly Payments are calculated at: 95% of piawe (capped at $1150.00) whether you have a current work capacity or not.After 13 weeks and up until 104 weeks WorkCover Weekly Payments are calculated at: 75% of piawe if you have no current work capacity (capped at $1150.00). 60% of piawe if you have a current work capacity (capped at $688.00).
There has been a change to the way that the payments apply if you have a current work capacity.
Obligation to provide suitable employment
After the first 13 weeks of weekly payments, you are entitled to 75% of pre-injury average weekly earnings if you have no work capacity, or 60% of pre-injury average weekly earnings
if you have some capacity for work, that is you can’t do your pre-injury duties but you can do
something/anything.
However, some employers are failing to offer employment unless you are capable of doing all of your pre-injury duties. In these cases, the workers have been penalised by having entitlements reduced to 60% when the employer failed to offer suitable employment.
Amendment
Under the changes, where an employer fails to offer suitable employment and the worker would be able to take up suitable employment, after 13 weeks the worker’s entitlement to weekly compensation will only be decreased to 75% of their pre-injury average weekly earnings (the same level as those workers with no capacity for work), where the worker: participates in the occupational rehabilitation service/return to work plan; and makes a reasonable effort to return to work with the employer; and makes a reasonable effort to return to work elsewhere; and participates in work capacity assessments.
When the employer provides suitable alternative duties and the worker is at work the worker is paid for the duties being performed. If the wages are as high as piawe, or higher, there is no WorkCover weekly payment. If the wages are less than the PIAWE there is an additional WorkCover payment. The formula on which the WorkCover payment is calculated is as follows: 60% of piawe to a maximum of $688 per week is calculated.60% of wages being received is calculated. 60% of wages is taken from 60% of piawe (or $688 if capping is needed). The amount from this subtraction is the WorkCover Payment that the worker receives in addition to wages.
Concern
We acknowledge that the government intends to overcome an unfair situation but they have not yet solved all of the problem. If the employer provides less than 14 hours a week of suitable alternative duties the worker could still be penalized.
Lodgement of claims by employers – or not
An employer must forward a claim to an authorised agent of the VWA within 10 days of receiving it. After receiving the claim, the agent has 28 days to accept or reject it. If the agent did not give a decision (in writing) in 28 days the claim is deemed as being accepted.
The problem is that if the employer does not pass on the claim the deadline (28 days) does not start. We have had workers waiting to hear something from the claims agents for more than 6 months.
Amendment
The amendment will enable workers to notify the relevant authorised agent of the claim at the same time as it is served on the employer. The amendment will also ensure that employers send in claims within 10 days otherwise penalties will apply. The amendment also provides that if an employer fails to forward a claim to the VWA or agent more than 38 days after receiving a valid claim from the worker, the claim is deemed accepted and the VWA or agent must pay weekly payments to the worker and the employer is liable for all weekly payments made by the VWA
or agent until the date the claim is received by the VWA (or agent) from the employer.
To make this work
If your employer tries to tell you that you can’t claim, or you believe that they won’t pass your claim on, make sure that you send a copy of your WorkCover Claim Form and your WorkCover Certificate of Capacity to the WorkCover Authority Claims Agent. If you don’t know who the claims agent is you can call WorkCover Advisory Centre on 9641 1444 and ask them.
Choice of occupational rehabilitation provider
An injured worker can have the reasonable costs of medical or like services paid by the VWA, employer or self-insurer. While the worker has a choice of doctor or allied health provider, he/she has not had the choice of occupational rehabilitation provider unless it was spelt out in your registered Enterprise Bargaining Agreement.
Amendment
Under the amendment injured workers will now be given the right to choose an occupational rehabilitation provider from a shortlist of no less than three providers nominated by the VWA, employer or self-insurer. This gives some choice where it did not exist before.
As the Act requires an employer to develop an Occupational Rehabilitation Program in consultation with the workers and the Program has to nominate suitable occupational rehabilitation providers there is a need to review the Occupational Rehabilitation Program and make sure that which providers are on the shortlist is negotiated, not dictated by the claims agents.
All of these amendments apply to all claims served on or after 1 July 2005. We remember how the Kennett government spent 9 years gutting the compensation system and the reducing the rights of injured workers. The Bracks’ government has slowly put up changes to try to make the
system fairer than it was under Kennett. They have not always done what the Unions have asked for and have certainly not yet made all of the changes that are necessary to turn WorkCover into a “fair system” the Bracks’government needs to make more changes to the WorkCover system to make it fair.
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