Repeatedly asked questions and answers about workcover Victoria

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There are many questions that we receive from Victorian  injured workers via our contact page. We have just about heard all questions, and have been able to provide answers in most cases. Set out below is a summary of those most frequently, repeatedly asked questions about WorkCover in Victoria .

The answers provided are relevant to the Victorian WorkCover scheme, and do not necessarily apply to WorkCover schemes in other states.

More Frequently Asked Questions about Workcover Vic can be found here

Repeatedly asked questions and answers about workcover Victoria

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1. I’m worried (or threatened) that I will be sacked if I lodge a WorkCover claim. Can they sack me? What can I do?

It is totally illegal for an employer/boss to treat you differently because you have been injured or made ill at work, let alone to sack you, because you have lodged a WorkCover claim.

Should you lodge a WorkCover claim,there are several protections within the WorkCover legislation as well as the Fair Work Act and Anti-discrimination law  to protect you from a dismissal (or other adverse action) from your employer/boss.

Should you be threatened with the sack by a boss  for lodging a WorkCover claim you, should  report the matter to the Victorian WorkCover Authority (aka WorkSafe Vic)  immediately.You can also lodge your workcover claim directly with the Victorian Workcover Authority should you fear reprisals.

2. Will I be charged a percentage of my settlement sum?

It is illegal for a lawyer in Victoria to charge a percentage of a settlement sum. If a case is taken on a “no win no fee” basis then the lawyers are entitled to charge an additional amount which is a percentage of the costs (and not the settlement or judgment amount).

At no time is a lawyer allowed to charge a percentage of the settlement sum and if your lawyer tells you this you should be making a complaint to the Law Institute of Victoria or at minimum seeking advice on your costs elsewhere as soon as possible.

For example, if a lawyer says to you: “So Craig, we’ve settled your case for $200,000. We are charging you 25% of the settlement, so your bill is $50,000”, then this is illegal.

If however your lawyer says: “Craig, we’ve settled your case for $200,000. We have done $22,000 worth of work and can charge you an additional 25% of the $22,000 on top. So your bill is $27,000”, then this is acceptable.

3. I have a friend or know a neighbour who had a similar injury as mine. Am I likely to get a similar (large) payout?

Each case is different. Each injury is different. There is no end to the variation in each. (Miserly) lumpsums are awarded according to permanent impairment percentages obtained by a permanently injured worker, every injury is different – for example a back injury may score 5% or 15%. As for common law claims (larger compensation), the injured worker, besides needing to suffer from a serious injury (30% WPI or more or having been awarded a serious injury certificate) must be able to prove the employer was at fault. Compensation will also depend on the impact the injury has on your life, and again each case is individual. For example a butcher who lost a finger will be awarded more than a manual  labourer who lost the same finger, as the impact on the Butcher’s work ability will be greater. A professional musician who lost a finger will also be awarded more – i.e.a pianist – as s/he needs all his/her fingers.

Your friends, neighbours, colleagues or family may have had some experience with the workers compensation system, but does not mean that they will be able to provide you with accurate advice. Often they will tell you some things that this blog tries to, eh, correct.

4. No one was to blame or at fault for my accident and subsequent injury. Can I still claim compensation?

Yes. Many injured workers believe that an accident must have been caused by negligence. But in Victoria (ans most states), we have a no fault workcover scheme. Just because there is no fault or negligence on behalf of your employer, it does not mean that you will not get your medical expenses and weekly payments paid. In many cases you will also be entitled to receive a lump sum should your injury meet certain criteria (percentages permanent impairment). The only difference is that you will not be able to pursue a common law claim, which attracts a larger compensation payout.

5. I’m worried that my WorkCover claim will take years before it is decided. Do they always drag on?

Weekly payments and medical expenses are covered immediately upon the claim being accepted, which is usually decided within 28-30 days of being lodged.

The time that it may take to obtain the lump sum compensation that you may potentially deserve varies from case to case. There is no fixed amount of time that applies in every case. The main complicating factor for most cases is the issue of “stabilisation” of your injury. Some injuries take years to “stabilise” (that is they get worse with or without treatment by more than 3%).

Many seriously injured workers (i.e. like workcovervictim) have to wait years for their lumpsum. WCV’s case took 8 years as her injury was repeatedly deemed unstable (by Medical Panel) due to endless complications and many surgeries…

If the injury has just occurred or if you have just had surgery because of the workplace accident some time (at least 12 months) will need to go by before a claim for lump sum compensation can be lodged. Patience is required, but your lawyer should keep you informed on its progress.

Their is however a strict 6 year limit to proceed with a common law claim. Again, if your injury is deemed unstable the clock stops ticking until you have been deemed “stable and stationary”. This generally means that your injury will not get better or worse, with or without treatment by 3% WPI.

The best and correct answer is “as long as is necessary to achieve the best result for you, the injured worker.”

6. If I win a common law claim, will the other side pay all of the costs?

A very common question asked by injured workers is why given that they have won their case are they paying a legal bill to their lawyers. The answer is quite simple. Usually, the opposing party (incl. workcover)  pays a portion of the entire amount of legal costs, and you are left to pay the remainder.

The legal costs that will be payable by the other side will not cover the entire amount of legal work performed in a case. It is similar to the Medicare “gap”.

Only in very extreme cases or in very particular circumstances can the Court order that the other side pay all of your legal costs.

7. Can I go back to work or look for another job if I’ve been on WorkCover?

The aim of  WorkCover  and its agents (insurers) is – of  course- to get you back to work as fast as possible…. as long as it is safe to do so – the latter all too often ignored by workcover insurers.

Your employer should -by law- be actively assisting in trying to get you back to work. In Victoria, your employer has a duty of care for you for a period of 12 months from the date of your injury, and cannot sack you, unless they really, really do not have suitable duties for you. In NSW for example this period is 6 months.

Although we strongly advise any injured worker not to resign, and always to seek legal advice if you intend to resign,  if you and your employer part ways down the track, having had an accepted WorkCover claim does not necessarily mean that you can’t look for another job.

There is no real restriction on you looking for other work.  It’s very important that you are continuing to get WorkCover certificates of capacity (where applicable).  If you have restarted work somewhere else remember to note on the certificate that you have returned to work (for else you may be accused of fraud).

8. Will my claim stop when I return to work.

Many injured workers are led to believe that when they return to work their workcover  entitlements automatically stop. This could not be further from the truth.

The injured worker’s entitlement to medical and like expenses does not stop simply because s/he has returned to work.

Also in many cases, an entitlement to weekly payments does not stop when you return to work if you have not returned to work at your pre-injury hours.

Furthermore WorkCover insurers like to talk about “full clearance certificates”. This is not a legal term and is not found in the Accident Compensation Act, which is the legislation covering workplace injury.

Just because you have been cleared to return to your old duties (pre-injury duties) and old hours does not mean that your claim has ended.

9. I’m worried because I appeared to recover from my [body part] injury and went back to work. But now it has flared up again. Can I lodge a new WorkCover claim? Do I have to?

This is an issue that we see over and over again. People are injured at work, have some time off and have medical treatment and then return to work. Six months or a year later they have increasing pain (and/or damage) in the same place where the original injury occurred.Most often this is the consequence of workcover (case managers) forcing injured workers prematurely to return to work; and/or the consequences of an employer who does not look after an injured worker (i.e. fails to make reasonable adjustments to the workplace, ignores repeatedly, medically, requested ergonomic aides in the workplace; forces injured workers on less than “suitable” duties.

Many injured workers also suffer from new (or aggravation of)  psychological injuries when they return to work when they are being bullied, humiliated, belittled, forced to undertake dehumanising work etc.

Quite often the WorkCover insurer will tell you that a new claim must be lodged. This is definitely not always correct advice and you should contact a/your lawyer so you are fully informed of your options.

In some cases a new claim may need to be lodged and in other cases it may be that your benefits continue to be paid under the original claim.

According to the Victorian Online Claims Manual

Claims must be classified as one of the following:

  •     a new injury
  •     a continuation of a prior injury or
  • a further injury, such as recurrences and aggravations

If the claim is a:

  •     new or further injury, register it as another claim and create a new file
  •     further injury, the agent:records the date of the recurrence or aggravation as the date of injury, not the original injury date and cross references the original claim file and the further injury claim file.

If the claim is:

  •     a continuing injury, use the existing claim and file
  •     closed – reopen it.

If the claim is a continuing injury from a previous employer not managed by the agent, the current employer’s agent is to:

  •     copy all documentation relating to the continuing injury
  •     keep copies of all documents on file in case a decision is questioned
  •     contact and liaise with the other agent

The agent with which the original claim was lodged should continue to manage the claim.

The following chart summarises the major points of difference between a continuation of a prior injury and injuries where s125(1AA) apply.

Continuation of prior injury Further  injuries
S125(4) S125(1AA)
Criteria No discernible contribution by employment.No incident or period or risk directly before the onset of symptoms, or period of risk not much different from activities worker with the condition usually undertakes without harm. Contribution by employment caused further symptoms because worker predisposed to further injury due to pre-existing injury.Pre-existing injury must be work-related. New and separate injury or if similar in pre-existing injury attributable to the latest accidentInjury must be within 12 months of return to work after receiving weekly payments.
Relief given to employer No relief Authority assumes employer’s liability for initial expenses under s125(1)(a) Authority assumes employer’s liability for initial expenses under s125(1)(a)Claim excluded from the then Bonus Fund calculation
Claim Same Claim New Claim New Claim

 

Selected related articles and resources

10. I think I should go on WorkCover but I don’t want to sue my boss. What can I do?

Lodging a WorkCover claim does not automatically mean that you are going to Court or that you are suing your boss/employer. It is after-all a no fault worlcover scheme.

There is no requirement that an employer/boss or anyone else must have acted unreasonably or breached their duty of care for a worker to have a WorkCover claim accepted.

In most cases the only test that is that the injury occurred at work or during some work related activity. This in itself triggers an entitlement to medical and like expenses and if necessary weekly payments. It may also trigger an entitlement to a permament impairment a lump sum depending upon the extent of the injury (%WPI).

Only if your injury was caused by negligence (fault) of your employer (and you can prove it), AND if you suffer a serious injury (30% WPI or serious injury certificate) , AND can demonstrate damage and loss, are you entitled to bring a common law damages claim against your employer.

Selected related articles and resources

11. I’ve heard that my lawyer can’t attend conciliation conferences. Is this true?

Generally this is correct, however with the explicit permission of the employer and/or insurance agent, an injured worker is allowed a legal representative to attend at a conciliation conference (ACCS) on their behalf.

If your lawyer is not/cannot attend your conciliation conferences or is not organising appropriate assistance through WorkCover Assist or Union Assist then you should be asking yourself how interested your lawyer really is in your case and whether they are just interested in obtaining lump sum compensation (and their fees!)

A decent, ethical injury lawyer will help you with conciliation matters -i.e. contact and brief Workcover Assist; help you with the preparation of the conciliation (i.e. what medical reports you need, wording of arguments etc).

12. I’ve been talking to other injured workers (or reading cases) with similar injuries to get a sense of how much I may be entitled to. But they differ so much. Why is that?

Each case is different and the fact that you have a similar or identical injury to another person does not mean that you are entitled to the same amount of compensation.

Two injured workers could lose their right index finger in a workplace accident. The common law (lump sum) entitlements that each of these people may be entitled to or received could vary greatly depending upon their age, circumstances of the accident, number of surgeries, ability to work in the future, their interests outside of work and… their willingness to pursue the matter to Court.

As explained above a professional piano player who loses a finger is likely to get more compensation than a labourer who “does not need his finger as much”.

Two workers who have a total shoulder replacement as a consequent of their injury may not get the same permanent impairment rating (some rating depends of remaining function, complications etc). They will also not get the same common law compensation (if eligible) because let’s say the 1st worker is young, underwent 8 surgeries, suffered numerous life threatening complications and is a nurse, whereas the 2nd worker may be older, underwent only 1 or 2 surgeries, had no complications and has a sedentary desk job.

13. I’m worried that my employer will go broke financially if I lodge a claim

This is a myth and could not be further from the truth.

Your employer has certain obligations to meet when a claim is made but the vast majority (just about all) of any payment must come from the WorkCover insurer (i.e. Allianz, CGU etc). That is why your employer is insured!

As a general rule, your employer must pay a small amount in medical expenses and the first 2 weeks of leave if you require time off work after the work injury. At this point the workcover insurer steps in and pays all additional medical and other expenses such as surgery, weekly pay and even settlement lumpsums. The employer’s insurance premium will however  increase a little (generally for 3 years) but this should not be of any concern to you.

14. My boss says it is better to have my injury kept “off the books” and s/he’s offered to pay for my medical expenses. Should I accept his offer?

No way. Never consider nor accept such an offer. Not now. Not ever, ever!

We have heard from quite a few people that have had their boss offer to pay the medical expenses on their behalf instead of putting a WorkCover claim in. This is just not on! You need to lodge a workcover claim, period.

Any delay in lodging a claim for WorkCover (i.e. more than 30 days for physical injuries) can make it much more difficult to have your workcover claim accepted. It also means that there is no official record of medical treatment.

The main issue however is, that if you start off requiring something relatively “cheap” such as physiotherapy treatment but after a time it becomes apparent that your injury is worse and you require surgery, time off etc.

Bosses are sometimes happy to pay the physiotherapy bills but when it comes to paying for surgery, they will baulk and simply sack you, leaving you with nothing.

All employers must have workcover insurance in Australia. The reason some do not want claims lodged is because their premium will increase (marginally).

 

 



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One Response to “Repeatedly asked questions and answers about workcover Victoria”

  1. With “Will my claim stop when I return to work” I think the agents like to suck people in or play on injured workers lack of knowledge of this system and try to make out its an all or none system… your claim is only ongoing if your completely incapacitated and you cant work, anything less and your claim ends. Not true. You are still entitled to ongoing medicals even after returning to work and top up of your pay if you can only work limited hours cause of your injury. Don’t let the agents get away with saying that you have no entitlement to medical once you’ve returned to work.

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