What is Compensation?

Under the Workers Rehabilitation and Compensation Act 1988 (Tas) a worker is entitled to compensation if they suffer an injury, not being a disease, arising out of and in the course of their employment, or a worker who suffers an injury that is a disease, arising out of and in the course of their employment, and to which their employment contributed to a substantial degree. The Act covers all injuries and diseases arising out of, and in the course of, employment provided the employment was a substantially contributing factor.

Forms of Compensation

When an employee is injured at work there are two remedies available, depending on the circumstances. They are:

• workers compensation benefits; and
• the right to claim damages.

Sometimes both remedies are available, but the employee will only be able to keep one form of benefit and will have to refund (with certain limited exceptions which will be discussed) any other benefits that were received.

Social security payments may also be available pending the resolution of disputed workers compensation and damages claims, but these too may have to be refunded.

Disease and injury

There is a Schedule of diseases in the Act (Schedule 4) which provides that, if a worker has been employed in work of a type referred to in the Schedule, it will be presumed, in the absence of evidence to the contrary, that the disease arose out of and in the course of employment, and that the employment contributed to a substantial degree to that disease. For example it will be presumed that pneumoconiosis caused by silica dust was caused by work involving exposure to inhalation of silica dust.

Some comment should also be made on the phrase ‘arising out of or in the course of employment’. This covers an injury caused by or connected with work. Compensation is not restricted to injuries that happen whilst an employee is working, but is payable for injuries occurring in circumstances related to the job. Thus, where an employee is injured while doing something that an employer could reasonably have expected or anticipated or authorised the employee to do, such an injury may be said to have occurred ‘in the course of employment’. The Act specifically provides that an injury is deemed to have occurred arising out of or in the course of employment if it occurs in the following circumstances:

• where the accident occurs when a worker engaged in port or harbour operations attends an arranged place for the purpose of being selected and engaged in employment;
• while a worker on any working day has attended their place of employment pursuant to the contract of employment and is present at their place of work.

If a worker is injured in a motor vehicle accident whilst travelling to or from work they are entitled to the same compensation from MAIB as any other citizen pursuant to the Motor Accidents (Liabilities & Compensation) Act 1973 (Tas); but they are not entitled to workers compensation.

Death

Section 67 of the Workers Rehabilitation and Compensation Act 1988 (Tas) provides that if a worker dies as a result of a work injury leaving dependants wholly dependent upon them, their dependants will receive 415 units, which is the amount represented by a basic salary (section 65). What constitutes a unit, i.e. a basic salary (s 66) is determined annually by the Minister and published in the Government Gazette. The basic salary rates are provided on the WorkSafe website. Partially dependent spouses or children will be compensated at no more than 415 units, in accordance with what is reasonable and proportionate in the circumstances – to be determined by the Tribunal.

A de facto wife or husband is regarded as a dependent if s/he has lived with the worker in a permanent and bona fide domestic relationship for not less than three years immediately preceding the death of a worker.

A spouse or caring partner will also receive weekly payments in case of death, at the same rate as the deceased worker would have received if the worker had been totally incapacitated. A dependent child is entitled to weekly payments determined on the basis of 15% of the basic salary, beginning at 13 weeks after the date of death.

The spouse will receive payments for two years after the date of death at the following rates:

• 100% for the first 26 weeks following the date of death;
• 90% for the weeks 26 through to 78 weeks
• 80% from the period 78 weeks to 2 years.

The reasonable funeral and burial costs of a worker will be paid by the employer (s75(1)(b)).

Incapacity for Work

Where a work-caused injury or disease results in incapacity for work, weekly compensation benefits are payable during the period of incapacity. Incapacity may be total or partial.

Total incapacity for work is where a worker is unfit for any work for which they are qualified. Where a worker is fit for some form of work for which they are qualified, but not all such work, they are partially incapacitated.

Determination of Impairment

Workers who claim for partial and permanent impairment are also assessed under the same American Medical Association tables and the worker must have more than a 5% whole person impairment before they can make a claim (s71). Under 5% no compensation is paid. From 5% – 70%, there is a formula for the amount compensated. Over 70%, compensation is 415 units.

The Act enables an employer more than 12 months after the worker started receiving payments, to serve a notice on the worker requiring them to commence action for damages. If they do not do so within the time set, this will extinguish any future claim (s136).

There are guidelines that apply before and after 1 April 2011. The guidelines for claims after 1 April 2011 and the guidelines for before 1 April 2011 are both available online.

When Compensation is NOT Paid

A worker will not be entitled to compensation if the injury is a result of their own serious and wilful misconduct (s25(2)(a)). In practice it is not usually difficult to prove that misconduct has been serious, but it is difficult to demonstrate that the action was wilful or deliberate. This defence is unavailable if the injury has resulted in serious and permanent disablement, or in death.