I was injured at work in NSW but my employer is uninsured, what now?

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Workers can claim workers compensation in NSW even if their employer is not insured.
Australia Employment and HR
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It is compulsory for all employers in NSW, unless they are considered an "exempt employer", to have worker's compensation insurance. If the business does not hold a policy, it may be fined or penalized up to $55,000.00 and/or up to six months imprisonment. Exempt employers still have responsibilities to their employees to provide assistance with injury management and return to work.

So, what happens if your employer is not "exempt" from holding worker's compensation insurance and you are injured at work?

Workers can claim workers compensation in NSW even if their employer is not insured

If you suffer a work-related injury or illness in NSW and your employer does not have worker's compensation insurance and is not "exempt" from holding such insurance, you CAN still make a claim for worker's compensation benefits.

If you are not sure about your employer's insurance status, you can contact the Independent Review Office on 13 94 76 for further assistance in establishing whether or not your employer was holding a valid policy at the time of your injury.

If your employer does not have worker's compensation insurance and is not "exempt", a claim can be made against the Uninsured Liability Scheme (ULS).

What is called the Nominal Insurer then becomes the insurer liable for claims against the uninsured employer. These claims are managed by iCare, the NSW Government agency that provides care services to people with injuries under various compensation schemes, including worker's compensation.

How do I lodge a workers' compensation claim if my employer is uninsured?

As with all worker's compensation claims, if you have suffered a work-related injury or illness, you must notify your employer immediately. The NSW Workers Compensation Scheme requires that an injury is reported within 48 hours of an incident. If your report is not made promptly, this may result in delays in receiving compensation entitlements or even a denial (rejection) of your claim.

Once you have notified your employer of the workplace incident, you will need to complete a Workers Injury Claim Form, which you can download here.

You will also need to consult with your GP, who will assess your injury and recommend treatment. At this visit, you will need to ask your GP to issue what is known as a Certificate of Capacity. This certificate will outline:

  • the nature of your injury or illness;
  • your capacity for work; and
  • any treatment you require.

Once these documents are completed, the Workers Compensation Claim Form and Certificate of Capacity can be lodged with the NSW Nominal Insurer, iCare. Contact can be made with EML, iCare's appointed claims partner on 13 77 22.

If you have any questions or concerns when lodging your claim, we can assist you through the process, from helping you complete your claim form to contacting iCare on your behalf to lodge your claim.

What happens once my NSW worker's compensation claim is lodged with the NSW Nominal Insurer?

Investigations will then be conducted to seek further information and/or determine liability. These investigations are to determine:

  • the actual employer who employed you;
  • whether the employer who employed you was actually uninsured;
  • whether you are a worker as defined by the Workplace Injury Management and Workers Compensation Act 1998;
  • whether the injury for which you are claiming compensation occurred while you were working for the nominated employer and your employment was a substantial contributing factor to your injury.

Once these investigations have been completed, the insurer will make a decision as to whether they accept or deny your claim.

What are my worker's compensation entitlements if my employer is uninsured?

Lodging a claim using the uninsured liability scheme does not alter any entitlements you may have, and your claim will be treated the same as all other injured workers, with the same entitlements.

If your claim is accepted, the following benefits will be available to you:

The Personal Injury Commission, whose role is to resolve disputes between injured workers, employers and insurers in NSW, has the jurisdiction to determine claims made against the Uninsured Liability provisions.

If your worker's compensation claim is rejected, you can lodge an appeal or dispute for compensation and medical benefits. You can read more detail about rejected claims in our earlier blog, "Help! My NSW worker's compensation claim has been denied".

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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