Qualifying for serious injury in Victoria using the narrative test

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Often people ask us if they can make a claim for negligence, or a claim for their pain and suffering. This sort of claim is called a common law claim. If you are a worker you can make a common law claim if your injury/s has been caused by someone else’s negligence and if you have suffered a serious injury. If negligence and serious injury can be proved then you can claim damages.

We have recently received a number of emails from Victorian bewildered injured workers, who are certified unfit for work, who have no work capacity (for the foreseeable future or indefinitely), however scored far less than the “deemed” 30% whole person impairment (WPI) to qualify for “serious injury” under the Act’s deemed test, and to allow to pursue pursue a common law damages claim. Some of those injured workers have been assessed with a WPI as low as 5% – courtesy of our outdated AMA 4th Edition Guidelines – even though they actually suffer from what could be defined as a “serious injury” (under the narrative test).

This article is devoted to those crippled injured workers and outlines – and highlights- that many such injured workers can be successful at having their injury considered “serious”, and successfully proceed with a common law damages claim and be fairly compensated for pain and suffering and possible economic loss.

Qualifying for serious injury in Victoria using the narrative test

 

Let’s take a sample case

An injured worker who suffers from a very bad back injury and subsequent significant secondary psychological injury, following a workplace accident, has been assessed by a workcover insurer impairment assessor, or by a medical panel, with a 5% WPI, pursuant to section (s)98C of the Act. In addition the injured worker was also given 22% secondary psychological injury (which, however do not count toward the total WPI). The workcover insurer then makes an offer of around $11,000 (lumpsum) – representing 5% impairment – pursuant to the AMA Guides (4th Ed) for the injured worker’s back injury and psychological condition. (note: in order to successfully claim a lunpsum in Victoria for permanent impairment (under s98C of the Act), physical injuries must normally amount to a 10% or more WPI when assessed in accordance with the AMA Guidelines 4th Ed, except in certain circumstances where 5% is allowed, such as for arms, spine and leg injuries)

In some cases -such as in this real sample case -the injured workers’ lawyer may advise not to dispute the workcover insurer impairment assessment at a Medical Panel, as the injured worker is unlikely to receive a higher score (%WPI), or worse, that a Medical Panel may find a lower assessment in terms of %WPI, and the injured worker is then unable to appeal this decision as medical panel assessments are final and legally binding.

So,the injured worker is left with a 5% WPI and a pathetic lumpsum, even though she has been medically assessed as unfit for work for the foreseeable future (indefinitely) – and doomed to a life of extreme poverty and ongoing/unending disputes with our adversarial workcover system in terms of weekly pay and/or medical treatment authorisations.

However, notwithstanding the extremely low impairment rating (5% WPI), the injured lawyer believes she has a good chance at bringing a common law damages claim. Now how on earth does this work?

Serious injury

The AC Act (Vic) allows a seriously injured worker to sue for common law damages where the other party’s negligence caused or contributed to the work-related injury. Rather than providing continuing support (as weekly payments of compensation do), common law damages provide a “one-off” lump sum payment to an injured worker.
There is nothing in the AC Act that prevents an injured worker from seeking access to both statutory benefits and common law damages. However, if a worker obtains common law damages, the worker cannot receive any future statutory benefits for the same kind of loss (apart from payment for medical and like services).

An award of common law damages will also be reduced by the amount of any statutory benefits already received.(AC Act, s 134AB(25)).

Access to  common law damages is currently restricted to injured workers who have sustained a “serious injury”. This means that the worker’s injury must satisfy either the “deeming” test or the “narrative” test.

The deeming test (aka quantitative test)

To satisfy the deeming test the injured worker must have a whopping WPI of 30% or more assessed in accordance with AMA-4.38 (AC Act, s 134AB(15).)

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 narrative test (aka qualitative test)

Under the “narrative” test an injured worker must have suffered:

  • a serious permanent impairment or loss of a bodily function; or
  • a permanent serious disfigurement; or
  • a severe permanent mental disorder or severe long term behavioural disturbance; or
  • loss of a foetus.

[Mental disorders or behaviour disturbances are assessed separately from physical injuries for the purpose of determining whether an injury satisfies the narrative test.(AC Act, s 134AB (38)(h).)]

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 ‘.

In restoring access to common law after the Kennett saga, the Government envisaged that most seriously injured workers would obtain access to common law through the deeming test. However, the opposite has proven to be true.

Relatively few workers have been able to access common law through the deeming test, because AMA-4 provides quite low impairment ratings when compared to its predecessor – AMA-2. In particular, spinal injuries (which make up a large percentage of workers’ compensation claims) rarely score over 10% WPI when assessed under AMA-4. (the average is between 5 and 8%)

Also a significant body of case law has developed around the narrative test, providing a degree of stability and certainty as to its application.

[Workers seeking damages for economic loss must also demonstrate a permanent loss of earning capacity of 40% to access that type of damages under the narrative test.(AC Act, s 138AB(38)(e).)]

The current deeming and narrative tests perform an important function for the workcover insurer ($$coffers). They ensure that common law damages are available only to the most seriously injured workers. The current tests also operate as a gatekeeper that helps to protect the ongoing viability of the scheme.

A high number of serious injury applications are initially refused by the VWA and subsequently accepted during the litigation process.

Let’s go back to our sample case

The injured worker in our (real) case, understand from his lawyer that her claim has been assessed as suffering an impairment of less than 30% (as she received 5%). She also understands that if she would like to proceed with a common law damages claim, she would be required to show that she suffered a serious injury, under either the deeming test (which is impossible as she did not receive 30% WPI or more),or…. under the narrative test.

The courts (in Victoria) have decided that for an injury to be considered as “serious injury”, it (the injury/ies) must be more than marked, more than significant and at the very least very considerable.
Does this injured worker have a serious injury?

The injured worker’s lawyer believes she that she would be considered to be suffering of a serious injury (under the narrative test) and that it is their opinion that she should proceed with a common law damages claim. Why does her lawyer feel she will be considered by the court as suffering “serious injury”? Simple: the injured worker has been assessed as having no capacity for work (indefinitely), suffers from medically certified serious, crippling pain, and her surgeons believe she can not undergo further surgery to her spine (back). In addition she suffers from 22% secondary psych injuries, rendering her also unable to work.

This injured worker was found, by the Court, to indeed suffer from a “serious injury” (under the narrative test) and because she had a very strong case of employer negligence, she was successful at her common law damages claim, and was awarded $120,000 for pain and suffering and $180,000 for economic loss.

Let’s re-sumarise it all

Do I have a serious injury claim?

It is necessary to demonstrate that a serious injury has been sustained before an injured person can bring a claim for common law damages under the Workcover scheme.

To be certified as having sustained a serious injury an injured person must meet one of two tests under the Workcover legislation.

The first test is referred to as a the ‘deeming’ or  ‘quantitative’ test because it is based on counting an injured person’s impairment under clinical guidelines (AMA 4th ed). The second test is referred to as a ‘narrative’ or ‘qualitative’ test because it is designed to assess the individual impact of an injury and its consequences. In particular, the test focuses on the effects of an injury on a person’s quality of life or inability to earn income.

You can make a serious injury compensation claim if you’ve suffered a serious injury due to the negligence of others. If an injury has affected your quality of life or impacted on your ability to work it is possible that you will satisfy the legal test of ‘serious injury’.

Serious injuries can include:

  • A bulging disc in your spine
  • Torn tendons in your shoulder
  • Cartilage or tendon damage in your knee
  • Scarring, burns or disfigurement
  • Fractured bones or vertebrae
  • A head injury
  • A brain injury
  • A spinal cord injury
  • A severe psychiatric disorder
  • Loss of or altered vision

What are the requirements for a serious injury claim?

A serious injury claim is brought against a negligent party who you believe may have caused or contributed to your injury. In order to succeed with such a claim there are three essential elements that you must establish:

  1. That you have a serious injury within the meaning of the Workcover  legislation
  2. That there was negligence or fault on the part of another party
  3. That you have suffered loss and damage

If you are unsure, seek legal advise you about your rights to make a serious injury compensation claim

What can I claim for a serious injury?

If you are successful in a claim for damages, you are able to claim for the pain and suffering that you have endured and will continue to endure as a result of your injuries. In some circumstances, it is also possible to claim damages for lost income. Any calculation of damages can only occur following serious injury certification and the proving of negligence as the cause of your injury.

What is the estimated compensation amount?

The amount of compensation you receive is based on factors such as the nature and extent of your injuries, your age, your loss of earnings, your likely loss of earnings in the future, the extent and length of any incapacity for work and the level of the pain and suffering consequences that you have endured.

When your injuries have stabilised, it will be necessary to obtain expert medical evidence about the effect the injuries will have on you in the future.

How long will it take to finalise my serious injury claim?

Serious or multiple injury claims are complicated and require careful consideration of complex medical and legal issues. It’s important that your injuries stabilise after any accident so that we know how they may affect you in the long term.

The complexity of time limits involved in a serious injury claim makes it critical that you obtain independent legal advice about your situation immediately. You shouldn’t wait for your injuries to stabilise.

If you are successful at the deeming/quantitative test (30% WPI or more) then obviously your claim will be “fast-tracked’ as you won’t have to go to court to apply for a serious injury certificate under the narrative/qualitative test. This can speed up your claim by 12-15 months.

 

The Vic Government envisaged that most seriously injured workers would obtain access to common law through the deeming test. However, the opposite has proven to be true. Don’t despair if you scored very little %WPI under the deeming/quantitative test, seek sound legal advice as you still may have a case for pursuing common law damages.

 

[post by workcovervictim and manually transcribed on behalf of WCV]

 



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10 Responses to “Qualifying for serious injury in Victoria using the narrative test”

  1. Excellent informative blog, Workcovervictim. I’m sure I would have been much better off doing the “narrative test”. Even though I did get the 30% from the Medical Panel, I have always felt that the impact of this injury on my daily life and capacity is over the 50%. I haven’t heard of this narrative test before. Do you know how long it’s been around?

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    • As far as we know, Access to common law damages was abolished by the Kennett Government for all injured workers from 12 November 1997. It was restored by the Bracks Government, for seriously injured workers, from 20 October 1999.
      Access to that “new” common law damages (that is, under the scheme that commenced from 20 October 1999) is restricted to workers who have sustained a “serious injury”. The worker’s injury must satisfy either the “deeming” test or the “narrative” test.

      Saying that when you apply for a serious injury certificate by means of the narrative test, no % is given, but rather a serious injury certificate. The same actually applies when you pass the deemed test (and score 30% WPI or more), you are simply given a “serious injury certificate” automatically (even though in practice your lawyer still need to to apply for the certificate with the VWA – but they can’t really deny it).

      So when you start a common law claim, the % WPI you have (or don’t have) does not count anymore. The WPI rating (or the narrative test) only purpose is to give you a serious injury certificate. The subsequent common law damage (compensation) you are then awared depends entirely on the level of your pain and suffering- which is capped to about 500,000. Obviously someone who is young and has undergone 10 surgeries will be awarded more than someone who is older and has undergone 1-2 surgeries. If you need further painful procedures (i.e. prosthetic revisions etc) you will also be seen as “suffering more”. It’s all very individual and sometimes bizarre as for example a complete quadriplegic who is young and in a “vegetative” state will get LESS compensation as it is deemed they don’t suffer (as they’re not aware)!

      So if you had a narrative test (which would have been a waste of time and money as it involves going to court) you still  may only have been awarded what you were awarded by undergoing the cheaper deeming test for which you qualified. And paid less lawyer fees as you did not have to go to court….

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      workcovervictim3 August 12, 2013 at 6:09 pm
      • Thanks WorkcoverVictim3. A higher WPI rating would have given me a higher no fault lump sum payment. My lawyer claimed that the offers made to me had to be based on the lump sum rate. If true, then I would have been financially better off on the common law settlement too. As it is, I would have been financially much better off staying on weekly payments until retirement as it definitely doesn’t look like they’re going to retrain me.

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  2. This report is very informative and actually alarming. I only received (if I can remember) 7% impairment and 1% psychiatric. My payment was approx $13k but take out legal fees only got $9k. Which any payment is good but this makes me nervous for my “pain and suffering” case which is due in in court end of the year.

    as part of case current legal case work cover has ordered me to see their psychiatrist whom last time I saw him, told me I was anorexic as a child and most likely bulimic at the date of my appointment. This was not the only alarming conclusions he made after seeing me for an hour. After this appointment I was severely distressed, became suicidal, and lost all hope future future. The fact that I must see him again is making me very anxious. i hate the way Workcover is treating me because I am only trying to get compensation for What I am entitled to And they are treating me as if I’m a murderer.

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    • Lani don’t go and see that IME without taking a support person with you into the interview. I too became deeply suicidal after seeing an abusive and biased IME. Ever since, for the last nine years, every time I’ve gone to an IME, my PTSD and Major Depression injuries have been severely aggravated. One appointment takes months off my capacity. I’ve found that the experience is somewhat better if you’re supported in the interview. I suspect that the ones who have anything to hide about their intentions in the assessment will refuse to allow it, and you’ll have to reallocated to a better class of IME.

      Also check out some of the excellent posts on the blog about IME’s and how to prepare for them and protect yourself. Good luck with that.

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  3. This is a really informative report. Thanks for posting. Its answered many questions I had about what I may face in the future.

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  4. By the way, many injured workers have repeatedly asked workcovervictim how much WPI she has.The answer is WCV was assessed by a Medical Panel of suffering from a whole person permanent impairment of 43% (so under the deeming/quantitative test), which is indeed very high. But then, WCV is really terribly “stuffed” and is only getting worse and worse.

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    workcovervictim3 August 12, 2013 at 9:06 pm
  5. It’s true, WCV’s health has been deteriorating badly in the Workover. It’s extraordinary that she has been able to do so much to help the rest of us. I am ever in awe at her courage and capacity.

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  6. Yes indeed very tough in Victoria. I am in NSW  and suffered long life spinal injuries and finally had the last of y ops being a multi fusion, yay. I am now 24% WPI and the solicitors went 17% physchological but up here common law clams are just as bad and hard to win, I have been in court for years and had a common law claim running and due to how hard it is to prove negligence (I didn’t think so) but after the lawyers scared the shit out of me  as if you lose you pay both parties legals which end up in the $100’s of thousands so I opted to drop it ad go back to what we call work injury damages where you can basically just claim for past & future wages and super so you lose all the pain & suffering award and the big one medical etc as my employer has a greater degree of risk as opposed to the occupier/tp in negligence (I fell down a concrete pit through a lid that was soooooooooooooo not suitable) so we have been and will be fighting this in the district court. For all those with serious injuries andthere are many make sure you get the best lawyer and I mean one who just does plaintiff work as that is a huge benefit and in this day negligence is hard to prove, you spend a lot of money on opinions but commonsense should prevail.

    I wish all sufferers the best and happy to reply to emails if seeking any advice as I have been in the ring for years with insurer CGU and my employer who just shat on me big time, maybe as I read before just stay on wages as they pay for travel which is at $1k a month and meds that are approx. $1300 a month and medical providers which has to be at $2k a month there lawyers god only knows so on a yearly basis till 67 I have a good 30 years to go so although I am not on the good wages I once was there tiny pittance of wages still adds up to over $20k plus a year, do the math.

    Good luck guys and gals, stay in the hunt.

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  7. Figures recently released by WorkSafe Victoria show an increase in the number of applications from injured workers seeking lump sum compensation for serious injuries. On average, approximately 210 new applications were lodged each month between July 2012 and June 2013 by employees who had suffered injuries significant enough to prevent them returning to work or performing their usual daily activities. If a worker’s application is successful, they are then entitled to pursue pain and suffering damages as well as compensation for lost earnings. According to the recent statistics from WorkSafe, approximately 61% of applications resolved within 120 days of their lodgement. (even when you pass a deeming test and score 30%WPI or more, your lawyer still has to apply for a serious injury certificate, which workSafe (vic) always leaves up to the last minute – 120 days – to grant, even though it is incontestable!)

    Where a dispute arises between the worker and their employer about their severity of their injury or how much compensation they are entitled to, proceedings are usually issued for the courts to settle the matter. WorkSafe have advised that the average time for a matter to resolve from the date an application is lodged can be anywhere between six and a half months to two and a half years. The length of time that an application for serious injury can take often depends on the complexity of a person’s condition and the circumstances in which they were injured.

    We can only hope that it is thanks to sites like aworkcovervictimsdiary that injured workers are learning their rights and their legit entitlements 🙂

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    workcovervictim3 August 14, 2013 at 10:02 am