What is a "disease of gradual process"?
Not all injuries occur suddenly. Many injuries are the result of wear and tear on your body caused by repetitive or strenuous work over a period of time. These injuries are classed as a "disease of gradual process" for the purpose of the Workers Compensation Act 1987 (NSW).
Most of us have some degree of degenerative change from the natural effects of ageing. However, not all of us will go on to develop symptoms as a result of those changes.
You can make a claim for a wear and tear injury that has either been caused, aggravated, accelerated, exacerbated or deteriorated as a result of your work as an employee in NSW.
It is sufficient if you have an underlying condition that has been rendered symptomatic by the work you were performing, or has resulted in an increase in pre-existing symptoms.
Some common conditions which can be accepted as a work related "disease" include:
· Carpel Tunnel Syndrome
· Degenerative disease of the spine
· Osteoarthritis and degenerative conditions resulting in joint replacements (eg. knee, shoulder, hip)
· Repetitive strain injuries and CRPS
What is the date of injury for my claim?
Generally, it is deemed to be:
· the date of first incapacity for work for which weekly payments of compensation are payable; or
· if no incapacity for work results from the injury, the date you make a claim for compensation.
· If the injury results in death, the date of death.
Weekly payments are not payable for any period unless you have a Workers Compensation Certificate of Capacity. The certificate cannot cover a period more than 90 days before it is provided.
If you have not ceased work at the time you obtain your first Workers Compensation Certificate of Capacity, your doctor should record the date of injury as the date of that certificate. Otherwise, it should be the date you are first certified unfit for work.
You may have previously complained to the doctor about your condition, or even taken some sick leave, but it is not appropriate to backdate the injury to a period before the current certificate. Some doctors think they need to list the date of injury as the date of first onset of symptoms. However sensible that may seem, it is not what the legislation says and it will result in your claim being denied.
I have worked for several employers, who will I make the claim on?
Compensation is payable by the employer who last employed you in employment to the nature of which the disease was due, or in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.
How will a pre-existing condition affect my claim?
Not as much as the insurers would have you believe.
Weekly payments are payable where an incapacity for work results from your work injury, regardless of your pre-existing condition.
Treatment expenses are recoverable where the work injury materially contributed to the need for the treatment. Eg.where you would have required surgery because of the pre-existing condition at some point in the future, but the work related aggravation has brought forward the need for surgery.
In a claim for lump sum compensation, a deduction will be made for the proportion of your impairment that is due to the pre-existing condition.
When should I seek legal advice?
The deeming provisions are complex with a large body of case law interpreting the provisions. One injury can end up with multiple deemed dates of injury; and multiple injuries can, in some cases, be combined with one deemed date of injury.
Because the deemed date of injury affects the amount of compensation you can receive, it is a good idea to get expert legal advice if you are having trouble returning to work or if your claim is denied.
An expert lawyer will be able to advise on these complex issues and help you form a strategy for maximising your claim.
Contact us for more information.
DISCLAIMER: This blog is made available by Mortimer Fox Lawyers to give you general information and a general understanding of the law, not to provide specific legal advice. Unless otherwise stated, all information provided pertains to injuries sustained in or in connection with New South Wales. By using this blog you understand that there is no solicitor client relationship between you and Mortimer Fox Lawyers. This blog should not be used as a substitute for legal advice. If you require legal advice please contact us for an appointment.
Comentários