Can I sue for damages under workcover?
First of all let’s look at the lumpsum
For injuries on or after aft12 November 1997 – If you have sustained at least 10% whole person physical impairment (5% for injuries to the spine and the upper/lower limbs on or after 3 December 2003), in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment 4th edition, you may be entitled to lump sum compensation. The following amounts are payable for injuries sustained on or after 1/7/06:
- 5% (arm, back, neck or leg injury sustained on or after 3 December 2003) = $9,650
- 10% = $15,550
- 15% = $27,200
- 20% = $38,850
- 25% = $50,500
You need to have a minimum of 30% primary psychiatric injury to be entitled to a very modest lumpsum.
30% psychiatric impairment = $12,450
Acceptance of a lump sum (physical and or psychiatric) entitlement does not affect your weekly payments or medical and like expenses or your potential right to pursue a damages/common law claim.
Total loss injuries
If you have sustained a “total loss” injury (i.e. amputation of a finger) your entitlement may be assessed in accordance with the Table of Maims.
Example – Total loss of Right Index finger $47,540
Note: So if you have a look at the amount of the lumpsum in dollar value, it is actually very little money. If you think that an average shoulder injury for example, necessitating 1or 2 operations only achieves on average between 10 and 15%, well that gives you between $15 and $27.000 if your are “lucky”. That’s it! This amount of money will just about pay for the debt you have incurred because you have been on workcover wages (i.e. credit card debt), then you need to take off (exorbitant) lawyer fees from that lumpsum anywhere between $2500 and $5000 just to get to the lumpsum bit and yes, you’ve got nothing left it terms of “compensation”.
Now let’s look at a Common Law damages claim
A claim for damages, which is also called a Common Law claim, is usually the only way that substantial compensation can be obtained for the full effects of your injury.
In a claim for damages, you are entitled to claim for the pain and suffering you have and will experience in the future. You may also be entitled to claim for the income loss (economic loss) you have and will sustain because of your injury.
Claiming economic loss damages is only permitted in some cases. In order to succeed in this type of claim, you must establish that your employer or some other person was negligent (i.e. breached a duty of care to you), and that as a result you have suffered a serious injury.
What must I prove in a claim for damages?
Claiming damages can be a very complicated process. If you are injured at work, the claim will be made under the WorkCover legislation. If you are injured away from work for example, while you are on a break, the claim may be made under the General Civil liability legislation.
Under WorkCover, there are three (3) elements that you must establish to obtain common law damages. These elements are:
- You are suffering from a “serious injury“
- Some other person was negligent – this can be your employer or a co-worker, and
- You have suffered loss and damage as a result
Establishing all three elements is essential to a claim.
These elements are best understood as three hurdles that you must pass through to succeed. It is important to remember that you must pass through all hurdles, not just one or two. This means that even if you have proven negligence and proven suffered loss and damage , if you don’t have “the serious injury hurdle” there is no point – you as may well give up now.
Many “workers” are injured in negligent circumstances and suffer loss but they can only succeed in claiming damages if they can demonstrate that they have suffered a “serious injury“.
So what is a “serious injury”?
The WorkCover legislation defines a serious injury. In order to show that you have a serious injury you must meet either of two complicated tests.
The Quantitative Test
Under this test, your percentage score of impairment under the American Medical Association Guides to impairment and/or the psychological guides must be 30% or more. It is possible to aggregate or combine an impairment rating from a physical injury with an impairment rating for a psychological condition even though the psychological impairment on its own is less than 30%. For example if there is a physical impairment of 20% and a primary psychological impairment all 15%, then the combined value of those impairments will be 32%. (Impairment scores are not added but combined using a special formula). These guides are very complex.
The Qualitative Test
This test is an alternative test to the quantitative test. It does not rely on a percentage score but rather relies on an assessment of the effect of the injury on your quality of life. This test is referred to as the narrative test as the WorkCover legislation narrates a series of criteria that must be taken into account. The criteria are any one of the following:
- Serious permanent loss of a body function
- Severe permanent behavioral or mental disturbance
- Permanent serious disfigurement
- Loss of a fetus
As this is a qualitative test, it requires a careful assessment of the full occupational, social, domestic, financial and psychological effects of your injury. In considering this test courts will look at many factors in determining whether an injury may be considered to be serious or not. Each case must be assessed on its own information about the full effects of an injury on the person.
This qualitative test is a very complex test. There is considerable case law about the way in which this test must be applied. The test will only canvass the permanent effects of injury and not the temporary effects of an injury. It is also clear that the physical and psychological effects cannot be combined to establish a serious injury. This means that either the physical effects or the psychological effects in their own right must constitute a serious injury. The psychological effects of an injury must be considered as ‘ severe ‘.
When can I claim economic loss damages in a common law claim?
The WorkCover legislation only allows a claim for economic loss damages (income loss due to injury) in strictly defined circumstances. It is only possible to claim these damages where:
- You are certified as having a serious injury under the ‘quantitative test’ (i.e. an impairment rating of 30% or more), OR
- You can show that your earning capacity has been permanently reduced by at least 40 %. This involves a very complex assessment of a claimant’s earnings and earning capacity 3 years before injury and a claimant’s earning capacity (not just actual earnings) 3 years after injury.
If your claim is within either of the circumstances set out above, you will be able to claim damages for both pain and suffering and economic loss. If you are not within the circumstances, your claim may be restricted to a claim for pain and suffering damages only.
In order to obtain the best possible result of claim for damages, it is important to carefully document the financial effects of your injury.
How are damages calculated?
Damages are calculated according to complicated rules, which vary according to the basis on which your injury is certified as a serious injury. There are two components of damages.
- Economic loss damages
These are claims for economic loss that generally include the nett current value of lost income and superannuation. These damages are capped by law at $1,076,580.00 but this high level will only apply to injured workers who are relatively young with high pre-injury earnings. Complex laws apply to the calculation of economic loss damages. (for more information about the calculation of economic loss see our WorSafe Vic FAQ page).
- Pain and suffering damages
These damages are to compensate an injured person for both past and future pain, suffering and distress caused by the injury. The maximum figure payable in an extreme case is $468,720.00. ( for more information about the calculation of pain and suffering see our WorkSafe Vic FAQ page)
Note | Disclaimer: This post has been compiled as a guide only, and to the best of my understanding of the relevant law, based on publicly available material. It should not be interpreted as legal advice in any way, form or shape and you must seek professional legal advice. If you don’t have a lawyer I highly recommend you check out the very experienced injury SHINE lawyers, which I personally recommend without any financial or other form of ‘reward’ or ‘benefits’ attached. These lawyers are down to earth humans, empathic, and best of all are no sharks!