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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.

How to Claim

An injured worker must notify the employer either verbally or in writing of the accident as soon as possible and before the worker has voluntarily left employment (s32Workers Compensation and Rehabilitation Act 1988 (Tas)). Notice may be given after the worker has voluntarily left employment where the injury is one contracted by gradual process (s80).

While the claim for compensation must be made within six months of the accident, failure to make a claim within six months or to give notice of the injury will not be fatal if the failure resulted from mistake (but not ignorance) or other reasonable cause.

Usually the employer will require the employee to complete a claim form, and will submit that to the insurance company together with a form completed by the employer. The insurance company will then investigate the claim. It may use an investigator to assess the circumstances of the accident and to obtain medical evidence. The failure of a worker to cooperate with the insurance company to obtain medical certificates from the doctors who have treated them, will result in delays in dealing with the claim. A claim for compensation shall be in the prescribed form and accompanied by a prescribed certificate from a medical practitioner.

Where a claim is denied by an insurance company, the worker may take action in the Workers Compensation Tribunal. In the event that the employer does not pay compensation or does not refer the dispute to the Tribunal, the worker can refer the dispute to the Tribunal.

An employer, on receiving a claim for compensation, can dispute or pay the claim. If the claim is disputed, the employer or insurer must notify the worker of the dispute, in writing, and refer the dispute within 28 days to the Tribunal and seek a stay on payments of compensation pending the hearing of the dispute (s77AA). If the employer does not refer the dispute to the Tribunal within the prescribed time period the employer will be bound to make weekly compensation payments (ss81AB and 81AC).

Defences Available to Employers

 

Some typical grounds of defence relied on by employers are:

  • denial of the injury;
  • denial of the injury coupled with the defence that (if an injury was received) it did not arise out of or in the course of the worker's employment with the employer;
  • that the employer has paid to the worker all compensation to which they are entitled;
  • that there was no incapacity; and/or
  • that any incapacity is unrelated to the worker's employment.

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