As workers compensation lawyers based in Sydney, on our website, we talk about your entitlements when you are injured at work, which are known as statutory benefits. One entitlement that you can claim, if eligible, is known as lump sum compensation for permanent impairment.
But what do these big words mean?
Say you are injured at work. Since the date of your injury, you have been getting treatment in the form of physiotherapy, general practitioner and specialist consultations, rehabilitation and been taking medication for your pain. Or, you have had surgery and have consulted your specialist who has told you that your injuries are now stabilised. This means that your condition has reached maximum medical improvement (“MMI”) – in other words, that you have recovered as much as you are going to, and your condition is not expected to improve significantly with further medical treatment.
Then what’s next?
This means that your injuries can be assessed for permanent impairment, also known as whole person impairment (“WPI”). Once your injuries are stabilised, we arrange a medical assessment on your behalf, where a specialised medical assessor will assess your injures and provide us with a report which includes a WPI rating. Based on this report and the medical evidence we obtain as part of your claim, we then submit the lump sum permanent impairment claim on the workers compensation insurance company on your behalf.
In order to receive lump sum compensation for your permanent impairment, you would need to be assessed at 11% WPI or over. There is no permanent impairment compensation payable for a degree of WPI of 10% or less.
How much is the permanent impairment payout in NSW?
It all depends on your assessed level of permanent impairment.
As detailed in section 66 of the Workers Compensation Act 1987 (NSW), the Workers Compensation Benefits Guide is a helpful guide that indicates what you would expect to be paid for your injuries. For example, if you were injured between 1 July 2024 to 30 June 2025, compensation amounts payable for an injury resulting in permanent impairment are as follows:
|
Degree of Permanent Impairment |
Payout Figure |
|
0 – 10 % |
$0 (no entitlement) |
|
11% – 30% |
Ranging from $28,840.00 – $100,470.00 |
|
31% – 50% |
Ranging from $106,560.00 – $224,550.00 |
|
51% – 55% |
$310,580.00 |
|
56% – 60% |
$396,570.00 |
|
61% – 65% |
$482,560.00 |
|
66% – 70% |
$568,550.00 |
|
71% – 74% |
$654,540.00 |
|
75% – 100% |
$740,550.00 |
(These are amounts payable for permanent impairment injuries received from 5 August 2015 onwards to date) Source: State Insurance Regulatory Authority, Workers compensation benefits guide, Table 37, as at October 2024
To put it in perspective, if you were injured on 1 July 2024, you have been assessed by a medical assessor at 21% WPI, you are expected to receive lump sum payment in the sum of $66,540.00.
But… is that it?
Yes…
If you are assessed by a medical assessor at 0% to 10% WPI, unfortunately, you are not eligible for lump sum compensation.
Maybe..
If you are assessed by a medical assessor at 11% to 14% WPI, you are entitled to lump sum compensation only.
No.
If you are assessed at 15 to 20% WPI, you are entitled to pursue a work injury damages claim and recover loss of earnings up to retirement age, which can be a very high amount.
If you are assessed at 21% WPI or over, you are considered a worker with “high needs”. Not only are you entitled to make a claim for work injury damages claim, which gets you are significant amount of money, you are also entitled to choose not to pursue a work injury damages claim and remain on the workers compensation scheme, where you will be paid your weekly payments until retirement age and medical treatment expenses for life.
Who pays the lump sum compensation payment?
The workers compensation insurer pays for it. It is also important to remember that the insurance company must first agree to your level of impairment before paying your lump sum compensation. They may decide to have you assessed by their own medical assessor. If a dispute arises in relation to your level of impairment, the matter may be referred to the Personal Injury Commission for a permanent impairment dispute. Whatever the outcome may be, we will guide you during the process and provide you with expert advice, assurance and support from the outset of your claim.
Am I eligible for lump sum payment for permanent impairment?
Yes, you are eligible for lump sum compensation payment if you are assessed at 11% WPI or over.
During the outset of your claim, the expert team at Trump Lawyers guides you as follows:
- Advise you on the workers compensation claims process and how it applies to the specific circumstances of your claim,
- Request updates from you in relation to treatment and recovery,
- Obtain medical evidence from your treatment providers and specialists,
- Arrange a medical legal examination and lodge a lump sum permanent impairment claim.
Do not take on workers compensation insurance on your own. Our experienced legal team has the skills and knowledge necessary to act on your behalf every single process of your claim. Please feel free to reach out to our expert team by contacting us on 02 9724 2549 or submitting the online form here.
Diana Joseph Solicitor P: 02 9724 2549
TLDR: We go above and beyond.
At first, the workers compensation system can sometimes feel overwhelming and complex, especially when you are dealing with the physical and emotional toll of a serious workplace injury. At Trump Lawyers, we specialise in helping injured workers in New South Wales secure the benefits they deserve.
This article will hopefully show you how we offer support and value to our clients:
Comprehensive Legal Support
1. Expert Case Management
- Personalised Attention: We understand that each client’s situation is unique. Our dedicated solicitors take the time to get to know you and your case, developing a customised strategy that addresses your specific needs and circumstances.
- Detailed Documentation: Proper documentation is critical to a successful claim. We ensure that all paperwork is meticulously prepared, accurately reflecting your injury, medical treatments, and any necessary details to support your claim. This helps to prevent common pitfalls that can cause delays or denials.
2. In-Depth Knowledge of Workers’ Compensation Laws
- Specialised Expertise: Our team possesses extensive experience and deep understanding of NSW workers’ compensation legislation, allowing us to navigate the legal landscape with precision and confidence.
- Continuous Learning: Laws and regulations evolve, and so do we. Our solicitors regularly update their knowledge and skills to stay ahead of legislative changes and emerging case law, ensuring that you receive the most current and effective legal advice.
Maximising Your Benefits
3. Ensuring Full Compensation
- Accurate Benefit Calculations: We calculate your weekly payments, ensuring they reflect your true entitlements. We consider all relevant factors such as pre-injury earnings, employment history, and medical reports to maximise your compensation.
- Permanent Impairment Claims: Achieving a fair assessment of permanent impairment is crucial. We guide you through every step, from selecting the right medical assessors to ensuring that all necessary documentation and evidence are presented effectively to support your claim.
4. Handling Medical and Rehabilitation Costs
- Access to Quality Care: We understand the importance of receiving quality medical care. We connect you with leading medical providers who specialise in workplace injuries, ensuring that you get the best possible treatment.
- Approval for Treatments: Delays in treatment can hinder recovery. We advocate on your behalf to ensure you receive approval for all necessary medical treatments, surgeries, and rehabilitation services.
Specialised Knowledge in Permanent Impairment Assessment
5. Achieving the Crucial 15% Threshold
- Maximising Your Entitlement: In NSW, an injured worker cannot pursue a work injury damages claim against their employer unless they achieve a permanent impairment of 15% or more. The difference between a 14% and 15% impairment can equate to hundreds of thousands of dollars in compensation.
- Expert Assessment: Our knowledge in assessing permanent impairments means we provide you with the best tools and strategies to enhance your chances of achieving the 15% threshold. This includes liaising with professional medical experts, carefully preparing evidence, and presenting a compelling case to ensure you receive the maximum possible benefits.
Emotional and Psychological Support
6. Alleviating Stress
- Communication Management: Dealing with insurers and employers can be stressful. We take over the communications, ensuring that your case is not overlooked by the insurer, presented accurately and professionally while you concentrate on your recovery and treatment.
- Support Services: Injuries often take a toll on mental health. We can connect you with psychological support and counselling services to help you manage the emotional impact of your injury and the claims process.
Streamlined Return to Work
7. Facilitating a Smooth Transition
- Suitable Duties Negotiation: Returning to work after an injury requires careful planning. We liaise with your employer to ensure that the duties you are assigned match your medical restrictions, reducing the risk of further injury and supporting a safe return to work.
- Workplace Accommodations: We work to secure necessary accommodations and modifications in your workplace, such as ergonomic adjustments or flexible working hours, so that you can return to work smoothly.
Efficient Dispute Resolution
8. Challenging Unfavourable Decisions
- Internal Reviews and Appeals: If you receive an unfavourable work capacity decision, we guide you through the process of requesting an internal review. If necessary, we escalate the matter to a merit review by the State Insurance Regulatory Authority (SIRA) and ensure your case is thoroughly examined.
- Representation Before the Personal Injury Commission (PIC): Our skilled solicitors represent you in disputes and appeals before the PIC. We present compelling arguments, supported by evidence, to protect your entitlements.
Cost-Effective Legal Services
- No Win, No Fee: We understand that financial pressures can be overwhelming, especially when you are unable to work. Our “No Win, No Fee” arrangement ensures that you can access high-quality legal representation without any upfront costs. You pay only if we win your case.
- Transparent Fees: We believe in transparency and honesty. Our fee structure is clear, with no hidden charges, so you know exactly what to expect.
Why Choose Trump Lawyers?
Choosing the right legal representation can make all the difference in the outcome of your workers compensation claim. At Trump Lawyers, we are committed to:
- Client-Centric Approach: Your needs and well-being are our top priorities. We provide personalised, respectful and compassionate services to ensure you feel supported every step of the way.
- Proven Track Record: We have a history of successfully securing maximum benefits for our clients. Our expertise and dedication translate into positive outcomes and satisfied clients.
- Comprehensive Services: From the initial consultation to the final resolution, we provide end-to-end legal support, ensuring that every aspect of your claim is handled with the utmost care and professionalism.
Contact Us Today!
Don’t do this alone. If you or a loved one has been injured at work, contact the friendly team at Trump Lawyers today for a free consultation and let us help you secure the benefits you deserve. Our expert team is here to support you every step of the way, providing the guidance, advocacy, and expertise necessary to achieve a successful outcome.
Joseph Yousif Principal Solicitor P: 02 9724 2549
Construction accidents can result in traumatic and long-lasting injuries. Like any employer, any owner of the construction site you are working on have an obligation to eliminate all potential hazards and risks on the particular work/job site. Unfortunately, accidents still happen. Construction sites come with daily safety hazards, as they are extremely hazardous environments to work in and a wide range of injuries can occur.
The leading causes of injuries at construction sites may include, but are not limited to, the following:
- Working at elevated heights, which exposes construction workers to the risk of falls, whether from scaffolds, ladders, or roofs.
- Being struck by falling objects, such as tools, equipment, or building materials or caught in or between objects,
- Heavy lifting, repetitive movements, and prolonged manual labour and physical exertion,
- Operating heavy machinery, such as cranes, forklifts and bulldozers,
- Electrocution,
- Being exposed to toxic and/or hazardous chemicals,
- Using defective equipment, machinery and/or tools which may lead to injuries.
It has been reported by SafeWork NSW that falls from heights are the leading cause of traumatic injuries and fatalities in the NSW construction industry, closely followed by contact with electricity. In the construction industry alone, 15,600.00 “serious claims” were lodged in the years 2021 to 2022. Serious claims include all workers compensation claims that result in a total incapacity from work of one working week or more (Safework NSW, Key Work Health and Safety Statistics Australia, 28 September 2023).
THE WORKERS COMPENSATION SCHEME
In NSW, the Workers Compensation Act 1987 (NSW) provides a framework to address such incidents, offering support and compensation to workers who sustain injuries while on the job. If you would like to know more behind the process of workers compensation claims in NSW, you can find more information on our website here. The expert Team at Trump Lawyers represent construction workers and help them ensure they receive the compensation they deserve while working to help them get the best result possible while maintaining high standards of ethics, care and professionalism.
So what happens when you are injured while working on a construction site?
If you have been injured while working at a construction site, the initial step is to report the injury to your employer as soon as possible and seek medical attention for your injuries.
The NSW workers compensation scheme is a no-fault system providing workers with financial benefits after suffering injuries at work. Injured workers are entitled to compensation in the form of weekly (wage) payments, medical, hospital and rehabilitation expenses, domestic assistance and lump sum compensation for permanent impairment if your injuries are assessed at 11% whole person impairment (“WPI”) or more. This is the initial stage of a workers compensation claim and the scheme is designed to provide quick and effective relief to injured workers without the need to prove fault on the part of the employer.
Can you sue for negligence if you were injured on a construction site?
That depends. While the workers compensation scheme is no fault, you may still have the option to sue for negligence if you have been assessed with a permanent impairment of 15% and above, which is known as a Work Injury Damages (“WID”) claim. A negligence claim may provide compensation for past and future loss of income (economic loss) as well as past and future loss of superannuation.
Serious Injuries and Claims Beyond Workers’ Compensation
Total and Permanent Disability (“TPD”) insurance is designed to assist workers who are unlikely to return to work due to their injuries, providing a lump-sum payment that can support their financial needs. For more serious and permanent injuries, it is also possible to make a TPD claim through your superannuation fund, particularly if you have Total and Permanent Disability (“TPD”) coverage.
What many construction workers do not know is that depending on the circumstances of the accident, it is also possible to sue against a third party other than your own employer if it could be established that the third party had any responsibility and played a role in your injury. For example, you may pursue a public liability claim if you injured yourself on the premises of the company that hires workers from a labour hire agreement that it may have entered into with your employer (known as the “host employer”).
If you were injured at a construction site while using a tool or defective equipment, you may also have a product liability claim against the manufacturer of the product. This can be a complicated area of law which may involve complex liability issues so you should not hesitate to explore your options with the help of a specialised personal injury lawyer.
Case Study – $1,100,000.00 received in compensation after a traumatic construction injury
CASE SUMMARY
We acted for a client who was involved in a traumatic injury at a construction site. He was working at a height of 7 metres and was crushed by two large steel mesh security screens. Our client sustained significant injuries to his left ankle and was taken by ambulance to hospital where he had surgery to repair his left ankle. He also suffered consequential injuries to his lower back and severe scarring.
Our client had initially instructed another law firm to represent him in a lump sum permanent impairment claim. He was assessed by a specialist medical assessor arranged by his previous solicitors at 11% whole person impairment (“WPI”). He would receive $23,790.00 clear to him based on this permanent impairment rating. Clearly, for an individual suffering significant injuries of a permanent nature, this outcome was not very favourable to our client. Not only was he limited in the compensation he would receive, but based on this permanent impairment rating, he would not be able to sue his employer for negligence by pursuing a work injury damages claim. The claim would have ended there.
It seemed that all hope was lost and that was the end of it. But that was far from the truth.
Dissatisfied with this outcome, our client came to our firm seeking a second opinion. After conducting a thorough review of the case and evidence, we were of the view that a medical re-assessment from another qualified specialist was required. Our client was re-examined, and his injuries were assessed at 16% whole person impairment. This not only entitled him to lump sum compensation in the sum of $39,340.00, but also opened up the path of pursuing a work injury damages claim against his employer.
Suing the employer for negligence
With the new permanent impairment assessment, we moved forward and made a claim against his employer for work injury damages, arguing that the injuries were sustained as a result of their negligence. The case involved the following process:
- Obtaining further evidence in the form of medical records, medical reports, financial loss documents and statements from the client and loved ones,
- Obtaining further detailed evidence to show the employer failed to maintain a safe working environment.
After extensive preparation of the matter, we highlighted the impact the traumatic injuries had on our client’s social life, personal life, work life and quality of life, including his ability to earn an income. After negotiating with the insurance company, the case was settled for $1,100,000.00 which our client was very pleased and satisfied with.
This success shows how important it is to have proper legal representation in work injury damages claims. If you are not happy with an outcome it is always good to seek a second opinion. For those suffering from workplace injuries, including injuries sustained in the construction industry, finding an experienced lawyer who can guide you smoothly through the process of personal injury law is not just an option—it is a necessity for appropriate and fair compensation.
At Trump Lawyers, our team are experts in Workers Compensation claims and we often assist our clients with their lump sum compensation claims to ultimately pursue a work injury damages claim. Your claim is run with precision and a great amount of attention to detail to obtain the maximum settlement amount to compensate you for the serious injuries you have sustained at work.
Diana Joseph Solicitor P: 02 9724 2549
The new CTP scheme took force from 1 December 2017 and came about with the passing of the Motor Accident Injuries Act 2017 (‘the Act’). Under the new scheme, injured people could access statutory benefits without needing to establish fault. These changes aimed to provide fair and tailored outcomes, as well as timely support for injured people during their recovery.
This article will explore the meaning and importance of statutory benefits and delve into the new changes that have been introduced that victims of motor vehicle accidents should be aware of, especially if you were injured in a motor vehicle accident on or after 1 April 2023.
So, what are statutory benefits and why are they important for me?
Statutory benefits are a type of insurance coverage that provides compensation to individuals who suffer injuries in motor vehicle accident claims. These benefits ensure that victims of accidents receive necessary financial assistance for medical expenses, loss of income, care support and rehabilitation regardless of who was at fault for the accident.
Generally, statutory benefits include:
- Weekly Income Payments (Wages) if you are an earner and off work;
- Medical and treatment expenses; and
- Domestic and personal care services.
Initially, those who were injured in motor vehicle accidents could only be entitled to statutory benefits for a period of up to 26 weeks. To continue receiving benefits for more than 26 weeks, injured people had to pass a ‘minor injury’ test (now called ‘threshold’ injury) and to potentially have a feasible claim for common law damages.
In November 2022, important changes regarding statutory benefits were introduced under the Motor Accident Injuries Amendment Bill 2022, providing extended benefits for those injured in motor vehicle accidents from 1 April 2023 onwards.
Under these new changes, the 26-week period was extended to 52 weeks. This means that if you are injured in a motor vehicle accident on or after 1 April 2023, you are entitled to statutory benefits for up to a period of 52 weeks, regardless of whether you were at fault for the accident.
Why is this good news for you? The new changes:
- Expedite and extend the delivery of financial assistance to injured victims without needing to establish fault,
- Ensure injured victims receive timely support,
- Extend support to injured victims during their recovery period,
- Protect victims who may experience delayed onset injuries, for example, digestive system injuries due to excessive intake of pain killer medication or psychological injuries,
- Work to make the motor vehicle accident compensation system more accessible and efficient for injured victims.
So, to summarise the new changes:
IF YOUR ACCIDENT HAPPENED BEFORE 1 APRIL 2023
- Statutory benefits for a period of up to 26 weeks regardless of whether or not you are considered at fault for the accident.
- The insurer must issue their ‘Liability Notice – benefits after 26 weeks’ within 3 months after you make a claim for statutory benefits.
IF YOUR ACCIDENT HAPPENED AFTER 1 APRIL 2023
- Statutory benefits for a period of up to 52 weeks regardless of whether or not you are considered at fault for the accident.
- The insurer must issue their ‘Liability Notice – benefits after 52 weeks’ within 9 months after you make a claim for statutory benefits.
It still remains the case that after the 26-week or 52-week period, the insurance company can stop paying statutory benefits if you are considered to be wholly or mostly at fault for causing the motor vehicle accident or if your injuries are deemed ‘threshold’ injuries. The meaning of the term threshold will be carefully examined in another article, which can be found here.
If the insurance company has stopped paying your statutory benefits and you wish to dispute this decision, or if you wish to talk to an experienced personal injury solicitor regarding a claim or potential claim, please do not hesitate to reach out to our experienced team at Trump Lawyers who will hear you out, assess your claim and discuss the next steps forward.
Diana Joseph Solicitor P: 02 9724 2549
When a statutory benefits claim is lodged under the NSW CTP scheme, the insurance company will always end up making a decision on whether or not your injury is determined to be a threshold (minor) injury. The threshold injury test is important because it is the gateway to continual statutory benefits and common law damages.
If you are injured in a motor vehicle accident in NSW, you should be familiar with the nature and meaning of threshold injuries. This article will help you understand the process.
RECENT CHANGES TO THE LAW
Under the Motor Accident Injuries Act 2017 (‘the Act’), those who have been injured must pass a “threshold injury” test to obtain benefits for more than 52 weeks, and to potentially have a feasible claim for common law damages.
If you are familiar with the CTP scheme, you may have never heard of the word “threshold” before and may be asking what it means. We previously discussed in our article here the statutory benefits and recent changes to the law which extend the period of statutory benefits that motor accident victims are entitled to, from 26 weeks to 52 weeks (if your accident occurs on or after 1 April 2023). The law also introduced changes to the word “minor injury”. “Minor” was changed to the word “threshold” after a review that the term “minor” down played injuries and its impact on an injured person, and that using this term may cause unnecessary distress. So, for the rest of this article, we will be using the correct term – threshold injury.
DEFINING THRESHOLD INJURIES: PHYSICAL THRESHOLD INJURIES
Under the Motor Accident Injuries Act 2017 (‘the Act’), threshold physical injuries are injures to the soft tissue of the body. Section 1.6(2) of the Act defines a threshold physical injury:
“A “soft tissue injury” is (subject to this section) an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
This may include strains, sprains, contusions, or lacerations. It is said that the most common soft tissue injury after a crash is a whiplash injury, resulting in neck pain, and muscle strains.
Threshold injury is further defined in clause 4(1) of the Motor Accident Injuries Regulation 2017 (‘the Regulations’), to include:
“An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.”
In short, experiencing symptoms such as numbness, weakness or tingling in your spine (for example, your neck or back) does not necessarily mean that your injury is more than a threshold injury. If your symptoms do not meet the criteria for radiculopathy, then the injury will be found to be as a threshold injury. However, this assessment is best left to a qualified medical practitioner and not the insurance company.
Examples of injuries that are not threshold injuries include:
- Fractures,
- Nerve injuries,
- Complete or partial rupture of a tendon, cartilage, meniscus or ligament,
- Damage to the spinal nerve root that meets the criteria for radiculopathy.
- For example, you may have pinched a nerve as a result of the accident in the lower back which leads to severe pain, numbness and weakness radiating down one or both legs from the lower back, or to your neck, which leads to severe pain, numbness or weakness that radiates into the chest or arm.
PSYCHOLOGICAL THRESHOLD INJURIES
Threshold psychological or psychiatric injuries on the other hand, are changes in one’s mood associated with feelings of sadness, anxiety, fear, anger or guilt. Adjustment disorder and acute stress disorder are two psychiatric illnesses which are classified as threshold injuries. It is expected that individuals who suffer from such injuries will make a good recovery within a short period of time. Section 1.6(1)(b) of the Act defines threshold psychological injury as follows:
“A threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness.”
Clause 4(2) of the Regulations states the following:
“Each of the following injuries is included as a threshold injury for the purposes of the Act:
(a) acute stress disorder,
(b) adjustment disorder.”
The newly extension of payment of statutory benefits from 26 to 52 weeks can be beneficial for injured victims who experience delayed onset of injuries, especially psychological injuries. For example, you may be diagnosed with initial Acute Stress Reaction (‘ASR’) following a motor vehicle accident, which has developed into an adjustment disorder (‘AD’) with anxiety. For the purposes of the Act and Regulations, this is considered a threshold injury. However, overtime, your symptoms may persist and become more severe. It may be the case then that, overtime, depending on the medical evidence and opinion of your treating doctors, you fulfil the diagnostic criteria for Post Traumatic Stress Disorder (‘PTSD’), which is not a threshold injury.
THE PROCESS
If you were injured in a motor vehicle accident on or after 1 April 2023, the insurance company will provide you with notice within 9 months of your claim. This liability notice will determine whether you are considered wholly or mostly at fault of the accident and whether the injuries you sustained are threshold injuries. The insurance company must rely on medical evidence when making its decision about threshold injuries.
If the insurer declines your statutory benefits claim on the basis that you have sustained a threshold injury, then depending on the circumstances of your case, a dispute may be lodged with the Personal Injury Commission and will be managed by the Commission after a compulsory internal review is conducted by the insurer.
As mentioned earlier in this article, the threshold injury gateway test is absolutely crucial for injured people. If the insurer considers that you have sustained threshold injuries, then your statutory benefits will end after 52 weeks and you will not be entitled to lodge a claim for common law damages.
If you are issued with this notice, you must take immediate action and seek legal advice if you have not already done so. Our expert team at Trump Lawyers will review your case and assist you with the following:
- Gathering all the medical evidence,
- Reviewing all the medical evidence,
- Obtaining further medical evidence, for example from your general practitioner or treating specialist,
- Preparing submissions in support of your claim,
- Lodging a threshold injury dispute in the Personal Injury Commission.
With the new CTP scheme creating a world of complexities for injured persons and practitioners alike, it is now more than ever, that we must ensure the rights of injured persons, particularly those with threshold injuries, are protected and preserved by challenging insurer’s decisions where it is appropriate to do so and where it is permitted by the Act.
Diana Joseph Solicitor P: 02 9724 2549
Video and communications technology in today’s day and age are widely accessible and easy to use. In personal injury claims, video surveillance is now used to assist insurance companies in their assessment and investigations of claims, to confirm or dispute allegations of injuries and restricted functions. They do this by recording you undertaking usual activities of daily living. This may take you by surprise. While some raise concerns of privacy, video surveillance is lawful. But why do insurance companies do it and how is it regulated?
Motor Vehicle Accident Claims
Video surveillance in motor vehicle accident claims is addressed under Sections 4.139 to 4.146 of the Motor Accident Guidelines (‘MAG’), which regulates the way insurance companies can record you. Although an insurance company is at liberty to undertake surveillance footage during the process of a motor vehicle accident claim, certain measures are in place that ensure this is done appropriately and reasonably. For example, the MAG sets a particular standard:
- Surveillance occurs only when there is sufficient evidence that indicates exaggeration during a claim or that there is misleading information in a claim, or
- The insurance company must reasonably believe that the claim is inconsistent or contrary to any information or evidence in their possession
- Surveillance must only be done in public places. The insurance company or the investigator cannot engage in acts of “inducement, entrapment or trespass”.
Recently, on 8 April 2022, the MAG was updated to provide protections for Claimants with mental health conditions. Section 4.146 states that an insurance company can only conduct surveillance of a Claimant only if they have clearly identified any mental health condition in the request for surveillance and have developed a risk management plan to minimise harm to the Claimant’s mental health condition.
Workers Compensation and PUBLIC LIABILITY CLAIMS
Video surveillance in workers compensation and public liability claims are not governed by any legislation or regulations. However, at common law, depending on the circumstances of each claim, a court’s interpretation of surveillance footage is approached in an “extremely cautious” manner. This was discussed in Asim v Penrose & Anor [2010] NSWCA 366, where Tobias JA noted:
“It is well accepted that a judge of fact should be extremely cautious in interpreting photographic evidence (which would include CCTV footage) particularly in the absence of expert evidence.”
Member Mr John Wynyard of the Personal Injury Commission observed in David v Global Logistics – Toll People [2022] NSWPIC 38, at para 86:
“The interpretation of the movements of people being filmed whilst under surveillance is necessarily subjective.”
While this may sound promising, it is also very important to consider that video surveillance can potentially damage a claim and greatly reduce or in some cases entirely prevent an award for compensation if a Claimant is being seen on raw footage, showing greater capacity and functions than they have previously stated in evidence. This is why it is important to be honest and truthful from the very start of your claim regarding your personal circumstances, your injuries and level of disability.
Diana Joseph Solicitor P: 02 9724 2549
It means exactly what it says. If we don’t win your claim for you, we do not charge you ANY costs or disbursements. You will only pay legal costs if we successfully finalise your claim.
If we take on your claim, it means we believe in your claim and we will be fully dedicated to it to the extent that we are willing to invest in it. This alone should give you a lot of comfort when dealing with us and you can be assured that your claim will have our full commitment. After all, if you lose, we lose and if you win, we win, and nobody likes to lose.
The promise of no win, no fee applies to all claims where compensation is being claimed for damage or harm caused by a third party.
- Please note, in some complex medical negligence claims, we may require you to cover the costs of the initial expert report which determines whether or not negligence exist.
The services for which we don’t charge unless we win are:
Engaging Trump Lawyers on a No Win, No Fee Basis
If you decide to engage us in a compensation claim, we will set out the terms of our engagement in a legal document named Costs Agreement which will explicitly state that our costs and disbursements are only payable on the successful completion of your claim.
Client Obligations
If you enter into a No Win, No Fee arrangement with us, your obligations are:
- To sign our No Win, No Fee Costs Disclosure and Costs Agreement,
- Be honest and transparent when providing instructions to your solicitor,
- Advise us immediately if your circumstances change which might impact your claim,
- Consider, accept and follow reasonable legal advice,
- Remain in constant contact with Trump Lawyers.
More Questions
If you have questions about our fees or another aspect of our services, please feel welcome to contact us online or by calling 1300 594 872.
The new CTP scheme took force from 1 December 2017 and came about with the passing of the Motor Accident Injury Act 2017 (‘The Act’). Under this new scheme, those who have been injured must pass a ‘minor injury test’ to obtain benefits for more than 26 weeks, and to potentially have a feasible claim for common law damages.
This article will deal with the 26-week limitation of benefits awarded for minor injuries, and the steps towards resolving disputes to ultimately allow benefits past 26 weeks, for those who have sustained minor injuries. Under the new CTP Scheme, if you have been injured in a motor vehicle accident you will be entitled to receive the following benefits for the first six months:
Statutory benefits include:
- Weekly Payments (Wages),
- Medical and treatment expenses; and
- Domestic and personal care services.
While a 26-week recovery period may seem reasonable for one individual, it could completely undermine the extent of another individual’s minor injury and could slow down or completely eradicate the prospects of a full recovery. Before getting into the nuts and bolts of the 26 weeks recovery period, we must first understand minor physical or psychological injuries.
Minor Physical Injuries
Minor physical injuries are those injuries to the soft tissue of the body, such as injuries to the muscles. It is said that the most common soft tissue injury after a crash is a whiplash injury, resulting in neck pain.
Section 1.6(2) of the Act defines a minor physical injury as follows:
“A soft tissue injury is (subject to this section) an injury to tissue that connects, supports or surrounds, other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Minor Psychological Injuries
Minor psychological or psychiatric injuries on the other hand, are changes in one’s mood associated with feelings of sadness, anxiety, fear, anger or guilt. Adjustment disorder and acute stress disorder are two psychiatric illnesses which are classified as minor. It is expected that individuals who suffer from such injuries will make a good recovery within a short period of time. Section 1.6(3) of the Act defines minor psychological injury as follows:
A minor psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness.
Part 1 clause 4 (2) of the Motor Vehicle Injuries Regulation 2017:
2) Each of the following injuries is included as a minor psychological or psychiatric injury
- acute stress disorder
- adjustment disorder
3) In this clause, acute stress disorder and adjustment disorder have the same meanings as in the document entitled Diagnostic and Statistical manual of Mental Disorders (DSM-5).
The Assessment
There is a dispute about whether the injury is a minor injury under Schedule 2 section 2(e) of the Motor Accident Injuries Act 2017 (the Act).
Clinical Examination
Prior to the MVA
The claimant was noted to be:
- Living with their parents
- Completing occasional casual work when offered by friends
- Enjoying surfing, camping and socialising with friends
- Driving independently
The claimant had a history of taking Zyprexa (anti-psychotic medication), was in receipt of a disability pension and was guarded about identifying why they were receiving this.
Post MVA
- Increased anxiety and fear about being in cars as a passenger/driver, the claimant was advised to sit in a stationary vehicle by their psychologist however was unable to complete this task
- Nightmares about the MVA and recurring dreams about dying in the crash
- Flashbacks about the crash and increased arousal with irritability
- Poor sleep due to nightmares and an exaggerated startle response especially when in a vehicle
- Loss of contact with some friends, concentration problems and memory deficiency
Review of Documentation
A psychologist’s report completed months prior to the accident, identified a diagnosis of paranoid psychosis. Based on the presentation at the interview for assessment it is likely the claimant had a pre-existing paranoid psychotic disorder. This is confirmed with symptoms such as guarded history and concerns about “disagreements with people”. The psychologist identified no overtly psychotic symptoms such as delusions or hallucinations, however the report notes that the claimant is on anti-psychotic medication.
The Medical Assessor determined that the current presentation is more consistent with Posttraumatic Stress Disorder than a Paranoid Psychosis.
Diagnosis
Posttraumatic Stress Disorder
Posttraumatic Stress Disorder is a recognised psychiatric illness. The claimant did not have symptoms of the disorder prior to the MVA and the noted pre-existing paranoid symptoms have not been exacerbated by the MVA.
The following injury is not a minor injury
- Posttraumatic Stress Disorder
So, what happens when the 26-week mark is approaching? The insurer will provide notice that benefits past 26-weeks are denied as the injured party has not passed the ‘minor injury test’ for physical or psychological injuries. The insurer must rely on medical evidence when making its decision. If the insurer does not agree to fund reasonable and necessary treatment and care expenses past 26-weeks to assist the injured party to reach full recovery where it is warranted, then a dispute may be lodged with, and will be managed by, SIRA’s DRS Merit Review Service after a compulsory internal review is conducted by the insurer.
We know that minor injuries attract benefits which are limited to 26-weeks. However, the following circumstances allow for extensions under section 3.28 (3) of The Act:
- Medical Evidence that treatment will improve recovery
- The insurer delayed approval of treatment within the 26-week period, further delaying recovery
Section 3.28(3) of The Act reads:
“… statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person…”
With the new CTP scheme creating a world of complexities for injured persons and practitioners alike, it is now more than ever, that we must ensure the rights of injured persons, particularly those with a minor injury, are protected and preserved by challenging insurer’s decisions where it is appropriate to do so and where it is permitted by The Act.
If you have been in a motor vehicle accident and are seeking compensation, reach out to our team today.
Life Insurance products include: Life (Death Cover) – if the insured dies, a lump sum is paid to beneficiaries or the insured’s closest living relatives; Total Permanent Disablement (TPD Cover) – if the insured is unable to return to work in an occupation within their qualifications and experience, a lump sum is paid to the insured; Critical Illness / Trauma Insurance Cover – if the insured is diagnosed with serious covered illnesses or suffer serious physical covered injuries (for example the loss of the use of two hands), a lump sum is paid to the insured; Income Protection (IP Cover) – if the insured is totally or partially unable to perform important duties of their occupation due to injury or illness, a monthly benefit is paid to the insured for a set period which could range from months to 5 years or age 60.
Life, TPD, and IP insurance usually form part of superannuation accounts.
These insurances can also be purchased directly from an insurance provider. Critical Illness / Trauma Insurance is usually purchased directly from a provider.
If you stopped working due to injury or illness recently or many years ago, you might have insurance coverage in your super that you were unaware of. Further, if you were a member of multiple superannuation funds, you may be able to make multiple claims.
If loved ones have died, they might have had Death Cover in their super or directly with an insurer.
If you believe an insured met or meets the requirements to claim life insurance benefits and need assistance with claiming, contact us to discuss your rights.
We will investigate your insurance coverage at the time the requirements were met (death of a relative, ceasing all work due to injury or illness, becoming totally or partially disabled to perform important duties of occupation, diagnosed with a serious illness, or suffering serious physical loss) for free and if insurance cover is found and your circumstances allow you to claim, we offer to represent you on a ‘No Win, No Fee, Fixed Fee’ basis to save you from paying Upfront Fees and allowing you to know from the beginning, what our costs will be – only if – the claim(s) is/are successful.
Dealing with these types of claims and with insurers can be overwhelming and sometimes intimidating; knowing where you legally stand can make the difference in getting your claim approved and paid.
If your claim has been declined by an insurer or superfund, we can review the reasons for their denial and advise you how to overturn their decision on a ‘No Win, No Fee, Fixed Fee’ basis.
We are a specliased law firm based in Sydney NSW and can assist you with your superannuation claim. contact us today on 1300 594 872 or inquire below.
Construction of s 39 WCA – Workers are entitled to payments for the period between the discontinuation and resumption of payments after an assessment by an AMS
Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Furthern Education Commission t/as TAFE NSW [2020] NSWCA 113 – White & Brereton JJA & Simpson AJA – 17/06/2020
In Hochbaum v RSM Building Services, the Court set aside the orders made by President Phillips on 18/04/2019 be set aside, dismissed the appeal against the decision of the Senior Arbitrator, and reinstated the Senior Arbitrator’s COD dated 7/01/2019. By consent, no cost order was made.
In Whitton v Technical and Further Education Commission t/as TAFE NSW the Court set aside the orders made by President Phillips on 17/06/2019, dismissed the appeal against the decision of the Senior Arbitrator, and resintated the Senior Arbitrator’s COD dated 7/01/2019. It also ordered the respondent to pay the appellant’s costs.
The Headnote reads as follows:
The appellants were two workers who were injured in the course of their respective employment. Each made a claim for compensation, and was in receipt of weekly compensation payments, prior to the introduction of the new workers compensation regime introduced in 2012. The 2012 amendments replaced s 39(1) of the (NSW) Workers Compensation Act 1987 (“the 1987 Act”), which now provides that a worker has no entitlement to weekly payments of compensation after an aggregate period of 260 weeks, whether or not consecutive, in respect of which a weekly payment has been paid or is payable. However, s 39(2) provides that the section does not apply to an injured worker whose injury results in permanent impairment if the degree of permanent impairment resulting from the injury is more than 20%.
Pursuant to the commencement of the legislative regime, the respondents’ insurers ceased paying weekly payments to the appellants with effect from 26 December 2017, being 260 weeks after 1 January 2013. Subsequently, the appellants were assessed as having a degree of permanent impairment resulting from their relevant work injury in excess of 20%. Weekly payments were resumed with effect from the date of the assessment; however, liability to make payments in respect of the period between 26 December 2017 and the date of the assessment was disputed.
In each case, an arbitrator held that the worker was entitled to weekly payments for the disputed period, but both decisions were overturned on appeal by the President of the Workers Compensation Commission, who held that the effect of s 39(2) was to displace s 39(1) only from the date when the worker was assessed to have a degree of permanent impairment resulting from the injury of more than 20%. The applicants, being aggrieved by the decisions of the President of the Commission in point of law, appealed from that holding, as of right, to this Court. The Court found there were two main limbs underlying the President’s decision (which formed the two primary issues considered on appeal); first, that assessment is a precondition to liability given the words of s 39(3); and secondly, that s 39(2) has a temporal aspect as it operates on the state of affairs that obtains at the relevant date.
Held, allowing the appeal:
On the proper construction of s 39, the 260-week limit never applies to a worker whose degree of permanent impairment resulting from the relevant injury exceeds 20%, regardless of when that threshold is crossed, and regardless of whether or when it is formally assessed as having been crossed: at [1], [45].
By incorporating Pt 7 of Ch 7 of the (NSW) Workplace Injury Management and Workers Compensation Act 1998, through s 65 of the 1987 Act, the words “to be assessed” in s 39(3) provide the methodology and process by which impairment is to be measured and any dispute about its existence or extent resolved; the words do not mandate that there must have been an assessment before s 39(2) is engaged: at [2], [3], [45], [46], [50], [82].
The date on which an impairment threshold is crossed is not a relevant consideration in any question arising under s 39 of the 1987 Act, and the only relevant question is, what degree of permanent impairment has resulted from the worker’s injury. For the purposes of s 39, while impairment may improve or deteriorate over time, or not be established until long after the injury, it is the final degree of permanent impairment that results from an injury that is determinative of whether the worker is in the exempt class. There can ultimately be only a single degree of permanent impairment that results from an injury; the contrary view is incongruous with the concept of permanency: at [53]-[56].
The degree of permanent impairment ultimately ascertained does not necessarily arise from the date of the worker’s injury. In some cases the worker’s degree of permanent impairment will date from the injury; but in others the ultimately assessed degree of permanent impairment would have been occasioned by later events, such as adverse results of surgery or psychological sequelae, that did not exist earlier: at [8], [9], [11], [12].
It is necessary to go no further than the text of s 39 to resolve the present dispute. Nothing in any of the three subsections of s 39 states, explicitly or implicitly, that removal of the subs (1) bar is dependent upon the date of the assessment of the degree of permanent impairment as distinct from the existence of the degree of permanent impairment. The language of subs (2) points in the opposite direction: the foundation for the removal of the subs (1) bar lies in the existence of a degree of permanent impairment exceeding 20%. Subsection (3) does no more than specify the mechanism by which the degree of permanent impairment is to be assessed; nothing in subs (3) suggests that an assessment may only be prospective. If it were necessary to go beyond the text of s 39, resort to principles of statutory construction would support the same approach: at [90]-[91].
Trump Lawyers is a boutique law firm in Sydney, recognised for its expertise in personal injury compensation. We are guided by our values of honesty, integrity and respect in everything we do. Our client-focused approach and dedication to achieving life-changing results is driven by our desire for equity and fairness.
