Section 217 Applications – what happens when the well runs dry?

30 June, 2021

 

what-are-your-entitlements.jpg

 

What are your entitlements?

If you have an accepted workers’ compensation claim there is an allocation of $239,179.00 for wages (the Prescribed Amount). The higher your wage, the quicker this allocation runs out, the lower your wage the longer it will last.

The Prescribed Amount is a gross amount, not a net amount. If your wages are $1,000.00 gross per week, being $838.00 net per week, then the Prescribed Amount will last 239 weeks or approximately 4.5 years. You will not receive the gross amount of  $239,179.00 but the net amount of $200,282.00.

Weekly compensation payments are capped at a maximum of $2,772.00 gross per week under workers’ compensation. Even if you were earning more than this prior to your injury, your weekly wages will be reduced to $2,772.00 gross per week.

Generally speaking, you will only accrue leave and be paid superannuation if there is a contractual obligation (ie it’s contained in your employment contract). There is no obligation under the Workers’ Compensation and Injury Management Act 1981 (the Act)  to accrue or pay these.

 

The Prescribed Amount has run out, what now?

Section 217 of the act dryly states:

Order as to the total liability of employer

  1. This section applies where -
    1. An arbitrator considers that an injury to a worker that is compensable under this Act has resulted in the permanent total incapacity for work of the worker; and
    2.  The total weekly payments by way of compensation payable under clause 7 for that injury have reached the prescribed amount.
  2.  If this section applies, the arbitrator may …. make any order as to the total liability of the employer for the incapacity that the arbitrator thinks proper in the circumstances.
    1.  ​​​​​​​An arbitrator is not to make an order under subsection (2) unless the arbitrator considers an order ought to be made, having regard to the social and financial circumstances and the reasonable financial needs of the worker.
    2.  The total liability of the employer ordered under this section is not to exceed ….
      1.  An amount equal to 75% of the prescribed amount

What does this mean?
In simple terms, if the Prescribed Amount runs out and you are experiencing financial hardship and you are totally incapacitated for work you can apply to access up to 75% of the Prescribed Amount, being up to $179,384.00 gross.

Providing details of your social and financial circumstances is accomplished by filling out Form 101.

Permanent total incapacity for work means that you are unable to return to the job that you were doing, trained for or for any other job that you are reasonably qualified for. The evidence for this is gathered by obtaining a statement from you, a specialist medical report, (usually from an occupational physician), and a vocational rehabilitation and labour market research report from a vocational rehabilitation specialist.

The person who ultimately decides if you are to receive an extension of the Prescribed Amount up to a further 75% is a WorkCover Arbitrator at  Arbitration (think trial at WorkCover minus the gowns and wigs). It takes more than a minute to get an Arbitrator’s decision though.
 

There is a process involved and this is it:

  1. The Prescribed Amount has to be exhausted (ie it needs to run out or be on the verge of running out);
  2. You must confer with the workers’ compensation insurer on the extension. This means that you have to present them with evidence that you are permanently and totally incapacitated for work and that the loss of wages will result in social and financial hardship;
  3. You must then file a Conciliation Application and attend a Conciliation Conference at WorkCover WA (on the assumption that the worker’ compensation insurer does not agree to your request for 75% of the Prescribed Amount. Unsurprisingly this is a  common denial).
  4. You must then file an Arbitration Application and attend a number of Directions Hearings on your way to an Arbitration Hearing.
  5. The common practice is that prior to the Arbitration Hearing, a Pre-Arbitration Conference is listed where a majority of matters settle. (Not necessarily for the full amount, but for a negotiated figure based on the strength of each parties’ evidence.)
  6. You proceed to an Arbitration Hearing if you do not settle and then wait for a decision.

Timeframes

From the commencement of the process to a Pre-Arbitration Conference, it can take about 6 months.

From the commencement of the process to an Arbitration hearing, it can take in excess of 12 months. Then the Arbitrator reserves the decision and at times there can be a prolonged period from the actual Arbitration Hearing to the handing down of the decision.

It can be costly as well. Obtaining the medical reports and other supporting documents can cost anywhere from $5,000.00 to $10,000.00, depending on the complexity of the case.

At PPIL we fund the whole process. That means that you would not have to find the $5,000.00 to $10,000.00 to obtain the evidence (disbursements). We pay for the disbursements and at the successful conclusion of the process, when the workers’ compensation insurer agrees to pay a settlement amount, it will also agree to pay the majority of the legal fees and will refund the disbursements which have been incurred to obtain the evidence. Your contribution to our fees will never be more than 10% of your settlement amount.  This is our capped fees guarantee.


How do I survive without wages?

This is a tough question. Your lack of income will be something that is considered by the workers’ compensation insurer in making offers to settle your claim. It will not be treated as a plus for you in their settlement offers.

We recommend that you:

  1. Check your superannuation fund or other insurances to see if you have income protection or TPD policy that you can rely on;
  2. Contact Centrelink for payments;
  3. Talk to your bank about reducing mortgage payments. PPIL is happy to provide a letter explaining what is going on with your claim;
  4. Utilise any mortgage insurance that you may have.

If you have any questions don’t hesitate to contact PPIL or Justin Cvitan directly on 0488 700 596.

 

Email: admin@ppil.com.au

North Perth: 9443 5312

Mandurah: 9581 4339