DO I HAVE AN INJURY CLAIM AFTER A CAR ACCIDENT IN NSW IF I HAVE RETURNED TO WORK?

Looking for answers about NSW compensation claims? The Advantage Legal ‘Compensation Insider’ series provides injured people, allied health providers and medical professionals with answers to questions that commonly arise from NSW personal injury compensation claims in both a short and snappy format as well as a more comprehensive form.

GIVE IT TO ME SHORT & SNAPPY

If you were injured in a motor accident in NSW on or after 1 December 2017, you are entitled to make a claim for weekly wage payments, treatment and homecare (also known as statutory benefits), regardless of who was at fault for the accident. If you were not at fault for the accident and have sustained an injury which is considered serious based on a definition set out in legislation, you are entitled to claim a lump sum payout (also known as a damages claim). Whilst returning to work does impact the extent of your compensation in both of these claims, it does not prevent you from making a claim.

I’VE GOT TIME – GIVE ME THE DETAIL WITH EXAMPLES

The NSW motor accident compensation scheme is a hybrid scheme comprised of both statutory benefits (i.e. weekly wage payments, treatment and homecare) and lump sum payout (a damages claim).  Your entitlement to compensation varies considerably depending on the severity of your injury, whether you were at fault, the amount of treatment and home care you require, and whether you needed time off work or not. In the vast majority of circumstances, the fact that you have returned to work does not preclude you from claiming compensation.

Let’s explore a hypothetical example to demonstrate how this would work in a practical manner. Assume that:

• You were a driving along the M4 motorway in a Hyundai Tucson and were involved in an accident with another vehicle.
• You were not at fault for the accident.
• You sustained a number of fractures with significant neurological issues requiring surgery.
• You needed to be totally off work for 4 weeks, partially off work for and additional 4 weeks and were cleared to return to work by your General Practitioner after a total of 8 weeks.
• You were able to continue at work in your current role because your manager was sympathetic towards your injuries.
• Come performance review time it was highlighted that you simply did not perform in the same capacity as you did before the accident.
• As a consequence your bonus was not as significant as in the past and you were overlooked for a significant promotion within company management.

Claim 1: Statutory Benefits

1. To claim statutory benefits, you need to complete an Application for Personal Injury Benefits and submit it with a Certificate of Fitness to the relevant CTP insurer.
2. Medical expenses for your surgery and post operative rehabilitation will be covered under the motor accident scheme provided they are considered reasonable and necessary and relate to the motor accident (i.e. pre-existing or subsequent injuries are unlikely to be covered). This includes hospital stay, specialist appointments, pain relief, wound dressings, antibiotics, travel to and from appointments, physiotherapy etc.
3. Assuming that you were immobile or required assistance around the home or with your personal care, the insurer would arrange for a commercial carer and/or cleaner for a period of time to assist you upon request.
4. Weekly income payments will be paid to you at 95% of your ‘Pre-Accident Weekly Earnings’ for the first 4 weeks when you were totally unfit for work.
5. During the second 4 weeks when you had some capacity for work, the insurer will still compensate you at 95% of your ‘Pre-Accident Weekly Earnings’ but will deduct any amounts that are paid by your employer. The insurer will not pay superannuation payments as part of this claim.
6. Once you have returned to work full time, the entitlement to weekly payments ceases, however can be restarted again if you have a relapse, deterioration or further incapacity associated with your motor accident injuries (such as further surgery). Note however, your return to work does not impact your ongoing entitlement to treatment and care provided it remains reasonable and necessary, and related to the accident.

Claim 2: Lump Sum Payout

1. To claim a lump sum payout you need to complete an Application for Damages Under Common Law and submit it to the insurer for the vehicle who was at fault for the accident. Note that this can be an entirely different insurer to the statutory benefit insurer in some cases.
2. You’re entitled to claim your entire past income loss, including the 5% not compensated to you by the statutory benefit insurer, the tax paid on your weekly income payments as well as the unpaid superannuation for the 8 weeks that you were either totally or partially unfit for work. You would also be able to claim the loss of bonus.
3. Even though you have returned to work after 8 weeks you can also claim:
   • Pain and suffering (as your injuries exceed the 10% whole person impairment threshold)
   • Future economic loss as you were overlooked for a significant promotion. Your accident will have inevitably impacted your ability to progress further within the company due to your reduced performance levels, however obtaining alternate employment will be difficult as you will have a reduced capacity on the open labour market when compared to people who are not injured.
   • Future superannuation associated with the future loss of income.

GIVE ME THE KEY POINTS TO REMEMBER

1. Returning to work does not mean that your entitlement to compensation ceases. In fact, returning to work can quite often result in significant lump sum compensation payouts as it demonstrates your capacity for work to the insurer.
2. The NSW CTP scheme is complex. Instruct an Accredited Specialist in Personal Injury Law with significant expertise in motor accident claims like the lawyers at Advantage Legal to ensure that you receive your full compensation entitlement.