I'm still injured: How can I leave the NSW workers compensation scheme?

Carroll & O'Dea


Established over 120 years ago, Carroll & O’Dea Lawyers offers expert advice and strong advocacy for clients. With a commitment to high-level service and legal expertise in all areas, they blend tradition with modern skills.
Injured workers in NSW may have options to exit the workers compensation scheme without sacrificing their support.
Australia Employment and HR
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Many injured workers find the workers compensation scheme exhausting: countless reviews with the insurer, repeating medical examinations, constant injury management plans, and even regular disputes over entitlements. Unfortunately, this is often the price to receive ongoing support for what are often lifelong disabilities.

How then can an injured worker leave that behind but still have some support into the future?

Thankfully, depending on your circumstances you may have options to exit the scheme without sacrificing your support. This article looks at a few of the options available to you:

Commutation (For injury after 30 June 1987)

A commutation is an agreement whereby your future workers compensation rights such as weekly benefits and medical treatment expenses are paid out, up-front in one lump sum figure 1. Once paid, your obligations and requirements under the workers compensation scheme end (unless you only agree to a partial commutation).

To enter into a commutation, you must satisfy the following criteria:

  1. You have a whole person impairment of 15% or more and have been paid lump sum compensation for that figure.
  2. At least two (2) years has elapsed since your first claim for weekly benefits;
  3. All opportunities for injury management and return to work have been fully exhausted;
  4. You've been receiving weekly benefits regularly and periodically throughout the prior six (6) months;
  5. Your entitlement to ongoing weekly benefits still exists;
  6. You've complied with all your return-to-work obligations; and
  7. You have a received independent advice from a legal practitioner about a commutation ( your legal costs can be covered by the Independent Review Office).

A commutation is negotiated with the insurer and is not usually a straight 1:1 conversion of your future workers compensation entitlements.

Once agreed, the commutation must be certified by the State Insurance Regulatory Authority (SIRA) and then registered by the Personal Injury Commission to have any effect 2. There is a 14-day cooling off period for the injured worker after entering into a commutation agreement.

Work Injury Damages

A work injury damages claim (or 'common law claim') is an allegation of negligence against your employer in causing your injury 3. This is a claim for your lost earnings from the date of injury up until pension age, typically including estimated wage increases and your lost superannuation.

In order to proceed with this claim, you simply need a confirmed finding of 15% whole person impairment or more. You should also bring the claim within three (3) years of injury, otherwise the Court's permission is required to proceed.

In preparing your case, your lawyer will usually gather further evidence from various experts about your disabilities and the circumstances of injury. They may also request directions on your employer to produce documents relevant to your claim. The matter then usually proceeds to a mediation in the Personal Injury Commission before any court proceedings are initiated.

The onus is on you to prove negligence on the evidence; however, the possible compensation is usually significantly higher than that provided by a commutation.

If you have been injured at work and want to discuss your options, please contact us at Carroll & O'Dea Lawyers.

1 Pt 3, Div 9 of the Workers Compensation Act 1987 – https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1987-070#pt.3-div.9
2 See, eg, https://www.sira.nsw.gov.au/workers-compensation-claims-guide/understanding-the-claims-journey/other-compensation-payable/commutation
3 See, eg, Pt 5, Div 3 of the Workers Compensation Act 1987 – https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1987-070#pt.5-div.3

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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