Do you, like Judy, read legal cases or stories involving considerable sums of compensation payouts to injured workers and wonder why it is that you did not receive any such compensation (payout) from workcover, even though you are badly injured and may never work again? If you do, read on as we’ll explain how this “compensation” works in Victoria and hope it all makes some sense.
We will cover the compensation structure and gateways as they apply in Victoria. (Remember that the workcover legislation varies from state to state.)
Are you missing out on compensation or a payout from workcover?
If a worker was injured at work and successfully lodged a workcover claim (liability accepted by workcover and claim approved) they can, generally, pursue compensation for their work-related injury. However it is important to understand that there are two types of “lump sum” (payouts) you can -potentially- obtain, namely a (permanent) impairment lumpsum/claim and a common law damages claim. There is a huge difference between the two.
A (permanent) impairment claim, very rarely exceeds $100,000 – generally you can expect a miserly payout around $10,000 to $50,000.
A Common Law claim for damages, can however run to a six or (more rarely) seven-figure sum.
Both types of payouts can also be awarded for the same work injury suffered, however the impairment lumpsum will be deducted from your common law damages claim.
Permanent injuries that workers suffer on the job are basically assigned an impairment rating aka “Whole Person Impairment” or WPI. This is the only factor to determine the lumpsum benefits to which an injured worker is entitled under an impairment claim. After a doctor initially treats a work injury, the worker eventually reaches the point of what is called “maximum medical improvement (MMI)”. At that point, the injured worker will be assigned an impairment rating, undertaken by an accredited IME and/or a Medical Panel (dispute).
Doctors basically assign the injured worker an impairment rating that is supposed to reflect the extent of the injured worker’s disability.This rating is then applied to a schedule /table of dollar benefits (lumpsum) for specific body parts or functions.
In other words, to determine the amount of compensation, Victoria (and all states) rely on the AMA Guide to the Evaluation of Permanent Impairment, which establishes criteria for measuring loss of function of a body part. In Victoria the 4th Edition is used (in NSW, the 5th Edition).
This is despite the AMA’s own statement that its guidelines should not be used to determine injured workers’ benefits.
The impact of using this criteria was best described by Professor Martha McCluskey: “In the classic (though atypical) example, direct use of the AMA Guides to determine disability benefits means that the bank president who loses a finger but has no resulting lost income would receive the same benefits as the pianist whose lost finger renders him/her permanently and totally disabled— because both would receive the same percentage whole-person impairment rating (just as both would receive the same fixed award/lumpsum in a scheduled system).”
[Sources: Linda Cocchiarella and Gunnar B.J. Andersson, eds., AMA Guide to the Evaluation of Permanent Impairment, 5th edition, American Medical Association, p.13 (“Impairment percentages derived from the Guides criteria should not be used as direct estimates of disability…The complexity of work activities requires individual analyses.”).; McCluskey, Martha T., “The Illusion of Efficiency in Workers’ Compensation ‘Reform’,” 50 Rutgers L. Rev 657, 833-34 (1998)]
The AMA Guides 4th edition, as used in Victoria, moreover removed the pain chapter, essentially meaning that pain does not rate. This means that countless of very seriously injured workers who, for example, suffer from extremely painful (nerve) conditions score 0% (zero)! Read “WorkCover state the AMA guide does not recognise chronic pain“
Some examples of Impairment (lumpsum) payments
The following are some (more) common examples:
- 15% whole person impairment from a neck injury $28.948
- 17% whole person impairment from a disc injury (10%), gastric ulcer from medication (3%) and surgical scarring (2%) $33,375.00
- 40% whole person impairment from severe a leg injury (total loss) $103.900
- 11% loss of hearing on the National Acoustic Scale $18.400
- Severe shoulder injury (total joint destruction), CRPS, nerve injury and severe primary psych injury: $50,000
Note: you can find the current lumpsum compensation tables on the Online Claims Manual (Vic) website: http://www1.worksafe.vic.gov.au/vwa/claimsmanual/Content/12Entitlements_Impairment/Entitlements%20Impairment.htm
Impairment ratings examples:
- vertebral fractures resulting in up to 25% compression with ongoing pain : only 5-8% total body impairment rating!
- spinal fusion requiring multiple surgeries with ongoing pain : up to 14%
- Severe shoulder injury: 15 – 26%
- surgically treated disc lesion with ongoing pain: 10%
- pelvic fractures with displacement deformity: 2-10%
- disorders restricting ability to walk up mild gradients and stairs, sit down in deep-chairs, rise to a standing position or walk long distances 1-9%
- brief repetitive or persistent alteration of state of consciousness or awareness 0%-14%
- (read more>>)
That is unless:
- a) you suffer from a serious injury (in Vic 30% WPI or more) AND
- b) can prove negligence on the part of your employer
So, how can you possibly know if you have a case that you can litigate for common law damages?
How do you know if you can pursue the Common law damages claim
Once your initial WorkCover claim has been lodged and accepted, you are potentially able to access a number of WorkCover entitlements.
If you are unfortunate enough to have been seriously injured at work, or most importantly, if that injury has had a significant impact on your life and possibly on your ability to earn an income (in the future), chances are that you will need much more than temporary income support (weekly payments and a relatively small lumpsum and a few medical and like bills paid). You have to start thinking about how you are going to support yourself and your family.
After you’ve received 130 weeks of income benefits/weekly pay, the WorkCover Vic insurer may (and will try very hard) terminate those benefits, if they determine you can resume some type of work, any work. (Also see our articles related to weekly pay/PIAWE)
To get weekly payments after the dreaded 130 week limit can be very difficult as you need to show that you not only don’t have the capacity to do your old job, but that you don’t have the capacity to do any job that you could reasonably be expected to do. Unfortunately the workcover insurer will use desperate measures, including sending you to a biased vocational assessment and biased IMEs.
If your weekly payments do get terminated and you are unable to work, you may be thrown onto Centrelink for income.
As we covered above, in addition to the payment of weekly payments and medical (and like) expenses, you may be eligible to claim a lump sum to compensate you for permanent impairment (the impairment claim referred to above) which will help a little towards aiding you financially.
The amount payable under an impairment claim is based on the severity of the injury or injuries, as determined by a specially trained doctor (or medical panel).
However, if your injury is severe and there was obvious employer’s negligence, there is a further lump sum option known as a Common Law claim for damages. If successful, it is worth much, much more than an impairment claim, with some awards amounting into six or seven figures. (note that the average common law claim in Victoria is around $80,000).
Common law damages claims are often settled out of court. Many cases are settled well before the need to step into a court room, either through a settlement conference or via mediation, or simply through agreement between the parties.
A common aw claim is based on an assessment of the impact of the injury on your life and your future
There is another big difference between the the Impairment claim lumpsum and the common law claim.
While, as mentioned above, the impairment claim is based on a percentage figure allocated to your injury (or injuries) and compensated per a fixed dollar table according to percentage WPI, assessing a Common Law claim takes into account your story – meaning that compensation is based on an assessment of the impact of the injury on your life and future.
For example, if you are a professional piano player and you suffer injury to one of your fingers, the impact of that injury on your future career would be catastrophic. Certainly a lot worse than, let’s say, a truck driver with the same injury, as the truck driver’s ability to work (and earn income) will not be affected as bad (if at all).
With an impairment claim and the associated lumpsum, a finger is a finger no matter to who it belongs. For the purpose of the impairment lumpsum, it really does not matter that you happen to earn your living by relying on the dexterity of your hand/finger movements. As mentioned, a worker with the same injury but whose life isn’t anywhere near as badly affected as that of the professional piano player, is entitled to the same amount as the piano player.This is the main reason why our current impairment claims are so very unfair.
On the other hand, under a Common Law damages claim, you can obtain compensation for the full effect of your injury. So, if you are a professional piano player, your finger injury would likely be considered to be a more serious injury because of the severity of the impact on your life, and especially on your career.
Apart from the impact the injury has on your life and (past and future) on your career, a common law damages claim also looks at the level of pain and suffering you endure, endured and will endure. So, a worker with a severe shoulder injury, who is relatively young and has undergone 10 painful operations, suffered many complications and will need to undergo surgery every 5 years for the rest of their life (i.e. revision or prosthetic) will be awarded more compensation for the “pain and suffering” component, than, let’s say a 64 year old with a similar injury, who only underwent 2 surgeries, did not suffer complications and will require a small number of surgical revisions during their life time.
The “economic loss” component of a common law damages claim, looks at your ability or inability to continue work. If because of your injury you can’t work again, or your career and ability to earn income will be negatively affected, you will receive compensation which takes this (economic loss – past and future) into account. Again, the professional piano player who lost a finger is likely to receive significantly more compensation than the truck driver with the same injury.
What to expect when pursuing a common law damages claim
You have been injured at work and successfully lodged a workcover claim. If you are unable to work, you are getting weekly payments from workcover which will help you a little to pay your rent/mortgage and the bills.You’ve been treated by doctors regularly and may even have had surgery (ies), which, thankfully, workcover has been paying along with any other medical and like service. You may also have been successful in obtaining a (fairly small) impairment claim lump sum. If your injury is serious and can be proven to be a consequence of negligence from your employer, then you can cross the no fault line and pursue a common law damages claim. Please be aware that proving negligence can be much more difficult than you may think! For example, if you work in a supermarket and were assaulted at work by a colleague or customer, it is unlikely that you will be able to prove that your employer (the supermarket) was negligent as it would not have been reasonably foreseeable that a colleague or a customer would assault you.
For a definition of what a serious injury is (in Victoria) see
For more information on negligence / breach of duty of care, see:
- Common law damages claim and duty of care of the employer
- Proving that a breach of duty has occurred can be very difficult
- Common law claims for psychiatric injury – injured workers often fail to establish breach of duty of care
- When has the employer done enough to avoid liability for psychiatric injury claim?
- Common law damages claim in Victoria
What to expect when pursuing a common law damages claim
Whether you are successful in your Common Law claim or not, you don’t need to worry about having your medical treatment interfered with -There is usually no change for the ongoing costs associated with your medical treatment.
If you are on weekly payments,these will generally continue unaffected while you proceed with your claim. However, hey may stop if you win your Common Law claim, depending on whether or not you pursued the “economic loss”component or not.
You will likely be required to attend many more medical assessments , which will be arranged by your lawyer and/or by WorkSafe’s defense lawyer(s). These (IME) doctors will-again- be reviewing previous medical assessments and reassessing your condition in view of your new Common Law claim. The process will be similar to what you underwent in the assessment of your impairment claim.
Your lawyer(s) will want to spend some time getting to know your entire story, and in your own words. The reason is to understand exactly how your injury has limited or affected your life (and the lives of your family and friends): and what you can’t do or are having trouble with as a result of your injury(ies). Have you given up hobbies? Can you drive? Can you clean and cook? Do some gardening? Is pain interrupting your sleep? Are you struggling to get through the day without taking painkillers? What painkillers are you taking etc.
Your personal story will be put into a statement by your lawyers with you, painting a before-and-after picture of your life since the accident. It is really important that you spend some time thinking about how the accident has impacted your life as you need to make it clear what you are really going through.
Your lawyer(s) will also discuss legal costs with you, and at certain intervals during the life of your claim, giving you an estimate of the range of your legal costs. Also see: Understanding No Win No Fee cost agreements and their pitfalls
Contrary to popular belief, not all common law cases go to court. Many are settled before the need to go to court. As such you may be required to attend -for example-a settlement conference with your lawyer(s) and the WorkSafe lawyers.
If your case does go to court, it may (or may not) not be as stressful as you might have pictured in your mind. Not all cases involve a jury in court, in fact, many cases don’t.
Should your case go to court, try not to worry too much. Your lawyer(s) will be 100% on your side and they will discuss the process with you and what you can expect before, during and after the court case. If your case actually does get a hearing in court, it is still possible that the matter will settle during the running of the case.Often the insurer will settle on the steps of the court!
If your case goes all the way to judgement in court, you may get a decision on the day the court case ends, or several months afterwards.
- Common law damages claim in Victoria
- How are damages calculated
- Common law damages claim and duty of care of the employer
- AMA Guide 4th Edition evaluation of permanent impairment handbook
- Injured worker not entitled to lumpsum for secondary psychological injury
- Articles under the search term “Impairment”
- Articles under the tag “Common Law“
[Post by workcovervictim and manually transcribed on behalf of WCV]