WorkCover VIC: Frequently Asked Questions, Support, Resources and updates
15 April 2013
VIC WorkSafe – The is VIC’s state government authority that manages Victoria’s workplace safety system.
The most frequently questions answered about WorkCover Victoria
Who is covered under WorkCover?
WorkCover is a workers’ compensation scheme established by law to compensate Victorian workers who are injured at work or who suffer from a work-related illness. Workers are covered by the scheme regardless of who was at fault.
In certain circumstances, independent contractors may be eligible for WorkCover compensation under the scheme. For example, a carpenter or truck driver with regular hours and one employer over a period of time may be considered a worker even if tax is not deducted from their pay. Clothing outworkers and local councillors are also now considered workers under workers’ compensation law.
I have been injured at work – what should I do?
If you have been injured at work you need to notify your employer within 30 days of you becoming aware you have sustained a work injury. A good way to formally notify your employer is to fill out the Register of Injuries which must be kept at each workplace.
You should seek any medical treatment necessary. It is helpful to tell your doctor or health provider the circumstances of your work-related injury from the first consultation.
If you incur medical expenses or need to take time off work, you will need to complete a WorkCover claim form. You can obtain a WorkCover claim form from the post office, or your employer may also be able to provide you with a copy. Or simply download a copy from Worksafe’s website.
Please note that if your work injury or condition came on over a period of time, you should note this instead of a date in the section that asks when the injury/condition occurred and when you first noticed it. You should contact your lawyers if you have any other queries regarding the WorkCover claim form.
The claim form must be given to your employer. If you are claiming for time off work, you also need to have a WorkCover Medical Certificate from your treating GP. An ordinary medical certificate will not be accepted. Your employer has 10 days from when it receives your claim to forward the claim to its authorised insurer/claims agent. It is possible to lodge a copy of a claim with the authorised insurer/claims agent. This is recommended where there is some doubt as to whether the claim form will be passed on. Penalties can be imposed on employers when claims are not forwarded to the authorised insurer or claims agent.
Once the authorised insurer/claims agent receives a claim it has 28 days to accept or reject the claim. If it rejects the claim it should provide written notice of the rejection. If it doesn’t reject the claim within 28 days, then the claim is treated as accepted. Normally, before deciding whether to accept or reject the claim the authorised insurer or claims agent will arrange for you to be examined by one of their doctors.
If you are concerned that your injury or condition could cause you ongoing problems, it may be worthwhile to seek legal advice while the circumstances of the injury are still fresh in your mind.
How long do I have to make a WorkCover claim?
There is no strict time limit to bring a no-fault WorkCover or impairment benefit claim, but the sooner you lodge a WorkCover claim the better. A Notice of Injury should be given to your employer within 30 days of you becoming aware that you have sustained an injury.
You only have 6 years from your date of injury to bring a common law claim against your employer. This date may be extended in some circumstances, such as if you have only recently become aware of the seriousness of your injury. If you are in any doubt and think that you might be out of time to lodge a claim, please contact a lawyer.
What will it cost me to bring a claim?
Many lawyers we will meet with you for free legal advice. You can phone or go in and discuss your claim and they will advise you on your rights and possible entitlements.
Most offer a No Win, No Fee arrangement in workers compensation WorkCover cases. That means that where we recommend you proceed with a claim and you lose, you don’t have to pay for their services. For some WorkCover claims, you may have to pay some disbursements. These are the bills they have paid on your file.
Also see our article about legal fees in Victoria>>
What type of work injury claims could I make?
If you are injured at work, you may be entitled to three different types of benefits:
- Weekly payments and reasonable medical and like expenses
- Impairment Benefit for permanent injury
- Common Law claim – this can include compensation for pain and suffering as well as loss of earnings.
What am I entitled to under WorkCover?
If you have an accepted WorkCover claim, you are entitled to claim related medical and like expenses.
In addition, if your work-related injury or illness has left you fully or partially incapacitated for work, you may be entitled to claim weekly payments.
What medical expenses and like expenses can I claim as part of WorkCover?
If you have been injured at work you are entitled to payment of reasonable medical and like expenses. This includes costs such as ambulance and hospital expenses, doctors and other medical attendances, medications and aides such as crutches. You are also entitled to personal and household expenses and rehabilitation costs.
Many people may not be aware that personal and household services can be claimed. These include counselling, modification to a home or car, household help, gardening, transportation and rehabilitation services. Rehabilitation includes services designed to either return you to your pre-injury job, or to re-educate or re-train you, or otherwise assist in obtaining other employment.
You are also entitled to claim for travel expenses to appointments for medical treatment (e.g. to see your GP, surgeon, physiotherapist) and also medical examinations by WorkCover doctors.
Am I entitled to weekly payments?
For the first 13 weeks, if you can’t work, you are entitled to 95% of your pre-injury average weekly earnings (subject to a maximum). Please contact our office for advice on 9321 9988 to find out how this is calculated.
After 13 weeks and up to 130 weeks, payments continue at 80% if you have no capacity for work.
If you are able to do some work, you are entitled to 80% of the difference between what you are earning and your pre-injury average weekly earnings.
Some workers can have their weekly payments continue where they have no current capacity for work and that situation is likely to continue indefinitely.
If you are working at least 15 hours per week and are likely to continue indefinitely to be incapable of undertaking further or additional employment or work, you may be entitled to further compensation beyond 130 weeks.
Can I make a WorkCover claim for stress?
You can make a WorkCover claim for stress or a mental health issue that requires you to obtain medical treatment or take time off work, if your condition is established to be related to your work.
An exception to this is that you cannot make a claim if your work-related psychiatric injury is predominantly caused by a reasonable ‘management action’ taken in a reasonable manner. It is important that if your condition is caused by factors at work other than management actions, that you state this clearly on your WorkCover claim form.
What is an impairment benefit?
You may be entitled to a lump sum payment if you are left with a permanent impairment because of your work injury. This is a no fault benefit, so you do not need to establish that your employer has been negligent. The benefit is calculated in accordance with a formula depending on the level of impairment you are assessed as having. An independent doctor would need to examine you in accordance with a guide published by the American Medical Association (4th edition).
There are minimum levels of impairment that you must have before you are entitled to an impairment benefit, depending on when you were injured and what injury you suffer. This benefit does not impact on your entitlement to weekly payments, medical and like expenses, or a common law claim. You do not need to pay tax on this benefit.How much will I receive for an impairment benefit?
Impairment benefit compensation is determined in accordance with a formula set out by law, dependent of the level of impairment you are assessed as having and the date of your injury. Once the level of impairment is accepted, you cannot negotiate on the amount of compensation that you are entitled to.
Psychiatric injuries are now paid at the same level as physical injuries. However, to receive any compensation for a psychiatric injury, you need to be assessed as having at least a 30% whole person impairment. This compares with 5% or 10% for certain physical injuries.
The amount that a person is entitled to increases by approximately $2,000 – $2,500 for each additional 1% impairment up to 30%.When can I bring an impairment benefit claim?
You may only bring a lump sum claim once your injury has stabilised (that is, not getting any better or worse). At a minimum, you need to wait at least 12 months since your date of injury.How long do I have to make an impairment benefit claim?
There is no time limit to make an impairment benefit claim. However, if you think that you may be entitled to lump sum compensation, you should seek legal advice as soon as possible.
You must bear in mind that if you have any common law rights, you only have 6 years from the date of injury to make a claim.
Common Law ClaimsWhat is a common law claim?
Some work related injuries are caused due to someone’s fault or negligence. This can be because of your employer’s failure to provide a safe workplace, although it can include the acts of another party with no connection to your employer.
The WorkCover statutory benefits system is a ‘no fault system’. In contrast, a claim seeking compensation for an injury where negligence is involved is called a common law claim. The compensation sought in a common law claim is called damages. In a common law claim, you may be entitled to claim for both loss of earnings as well as pain and suffering damages.When can I bring a common law claim
Even where your injury was caused by your employer or another person’s fault, you do not automatically have the right to sue for damages. You must first establish that you have suffered a serious injury.What is a ‘serious injury’?
You must have a serious injury to be able to bring a common law claim. This means either receiving an impairment assessment of 30% or greater in a lump sum application or qualifying under one of the definitions of serious injury set out by law. These are:
- Permanent serious impairment or loss of a body function
- Permanent serious disfigurement
- Permanent severe mental or permanent severe behavioural disturbance or disorder
- Loss of a foetus
Whether you meet any of these definitions involves an assessment of the injury and its effects to see if these consequences of the injury are ‘more than significant’ when compared with other cases.
The Victorian Workcover Authority (or WorkSafe) through its lawyers may issue a certificate confirming you have suffered a serious injury. If your application is denied, then a case can be issued in the County Court of Victoria seeking a certificate.How long does a common law claim take?
It is very difficult to estimate how long a common law claim might take. The claim may only be brought after the injury is stabilised, and the medical evidence is gathered.
From this time, the duration varies dependent on factors including whether the Victorian WorkCover Authority rejects or accepts the serious injury application, the complexity of the case, and whether the case settles prior to litigation. As a rough guide, from the date of the serious injury application (the first step) common law claims can take between 6 – 24 months.How long do I have to make a common law claim?
A common law claim must be commenced within 6 years of the date of injury. Injuries that arise over time such as psychiatric injuries should ideally be commenced within 6 years of the onset of symptoms. However, you should seek advice well before the 6 years expires, however, as preparing a case takes some time.
Even if you don’t think your injury is serious, you should still obtain legal advice regarding your possible right to claim while the circumstances of your injury are fresh in your mind.
In some limited circumstances, you can make a claim more than 6 years after your date of injury, for example if you only recently became aware of the seriousness of your injury. If this is the case, it is important that you seek legal advice as soon as possible.Would I have to go to court?
In a common law claim, there are two stages in the process that could involve going to court – the serious injury application, and the trial regarding negligence.
Any application must be brought bearing in mind that you may have to go to court to establish your claim. As a matter of practice, the majority of cases we act in reach negotiated settlements, particularly after a serious injury certificate is deemed or granted. Your lawyers will advise you fully on your case and any risks involved prior to any litigation being commenced.What compensation could I receive?
If you are granted a serious injury certificate, you can bring a claim for pain and suffering damages. The amount of pain and suffering damages you can claim depends on your circumstances and the impact of your injury. If the matter goes to court, it would likely ultimately be determined by a jury. As a guide, the maximum amount of pain and suffering damages allowed by law is approximately $500,000. However, this is only for the very worst of injuries and most injured workers receive far less than this. The current Victorian average is approximately $80,000. The amount varies according to the severity of the injury and the effect that it has had on your life.
If you have already received a lump sum payment, this is deducted from any pain and suffering damages that you receive.
If you are able to bring a claim for loss of earnings, you can claim for your past and future economic loss. The amount of damages that this includes depends entirely on the amount you can prove that you were earning prior to your injury and your earning capacity into the future. It can therefore only be determined on a case-by-case basis.
If you receive damages for economic loss, you are required to pay back any weekly payments of compensation that you have already received under WorkCover in relation to the claimed injury. You would also not be allowed to receive any further WorkCover weekly payments in relation to the claimed injury into the future. Your medical and like expenses would continue to be paid regardless.
[Information taken from www.Advicelineinjurylawyers.com.au - Adviceline Injury Lawyers are reputable WorkCover Lawyers in Victoria]I have just been injured at work
The process of dealing with a work-related injury or a work-related illness can be very confusing. Here we outline the basic process for you.
What you need to do
- As soon as you become aware of an injury or illness report your injury to your supervisor
- Complete an incident report (refer to your work policies)
- Go to the emergency department / local doctor and have your injury assessed and documented
- Ask questions if you are not sure about something
- Lodge a workers compensation claim as soon as possible, no matter how minor your injury/illness appears to be and especially if you require any treatment or time off work
- Actively participate in the development, application, monitoring and review of your return to work plan
- Seek advice from your Union/Job Representative/Health and Safety Representative/Return to Work Coordinator
What does my employer / manager / Supervisor need to do?
- Provide a safe work environment
- Promote early notification of injury/incident and claim lodgement
- Manage workplace injury and assess ongoing risks
- Explain your entitlement to workers compensation, rehabilitation and other services
- Provide, sustainable, safe, durable and meaningful return to work duties
- Consult with you in the development, monitoring and review of your return to work plan
- Educate staff on consequence of injury/illness, workers compensation and rehabilitation and return to work
What does my employer /manager / WorkCover agent need to do?
- Determine the liability of your workers compensation claim
- Provide ongoing management of your claim
- Communicate to you your workers compensation entitlements.
- Approve your treatment in a timely manner
- Pay your workcover entitlements (including salary) in a timely manner
What does my doctor need to do?
- Diagnose,assess and document your injury/illness and communicate this to you
- Issue you with a workcover certificate of capacity
- Determine appropriate treatment and management of your injury/illness
- Provide to you an expected timeframe for recovery from your injury/illness
- Explain the impact of medication on your ability to function in general and for return to work
- Respond to requests for information in a timely manner
- Work with you and your employer’s/manager’s return to work coordinator in the development, monitoring and review of your return to work plan
- Following your consent, respond to requests for information in a timely manner and preferably when you are present
- Assist you in accessing appropriate rehabilitation services
What does my employer /manager / return to work coordinator need to do?
- Develop and maintain relationships with you, your supervisor, your medical practitioner and other stakeholders
- Coordinate return to work in the workplace
- Explain to you the return to work process, and your rights and responsibilities for return to work
- Explain to you your employer’s roles and responsibilities for return to work
- Develop, monitor and review with you, your supervisor, and your medical practitioner/GP the return to work plan
- Identify sustainable, safe, durable and – especially- meaningful return to work duties
Return to Work Plan
You and your employer have legal obligations for return to work, and when you lodge a workers compensation claim you are making a commitment to actively participate in return to work where it is reasonable.
Your employer has a legal obligation to actively support, assist and facilitate your return to work. It is important that your employer works with you and your medical practitioner/GP. Your Union can also assist and support you through the return to work process. It is best to contact your union representative as soon as possible (i.e. at the time you lodge your workers compensation claim).
Need more information?
- Contact your employer’s return to work coordinator and/or OHS department.
- Contact WorkSafe Advisory Service on Freecall 1800 136 089.
- Contact your Union (i.e. ANF Information Line (for Nurses) on03 9275 9333 or 1800 133 353)
The schematic Overview of the Workers Compensation Claim process below provides injured workers with an overview of what occurs when they lodge a claim for workers compensation.
To lodge a workers compensation injured workers can access advice on this process at www.workcover.vic.gov.au accessing the injury/claims link.Dealing with disputes with WorkCover VIC
Resolution of a dispute by a court should be a last resort as there are a number of alternative dispute resolution mechanisms available. With the proper guidance most disputes with WorkCover should be resolved without a court hearing. Most disputes are initially referred to the Accident Compensation Conciliation Service, which will attempt to resolve a dispute in an informal manner.
How to lodge a conciliation request
Referring a dispute to the Accident Compensation Conciliation Service merely requires the completion of a simple form and sending that form to the service. The postal address of the service is:
GPO Box 251
Melbourne Vic 3001
A conciliation form can be obtained from the following;
- the Accident Compensation Conciliation Service – telephone 1800 635 960 or (03) 9940 1111
- download a form now here
- your WorkCover claims agent
The form should be completed by filling in all relevant particulars. The form asks you to specify whether anyone is assisting you with your conciliation. Generally, lawyers are not permitted to attend conciliation on your behalf but assistance is available, at no cost, from two excellent advocacy services:
- Union Assist can assist members of unions who have a referral arrangement with Union Assist. If you are a union member you should contact your union and they may be able to represent you themselves or may refer you to Union Assist.
- WorkCover Assist is also an excellent advocacy service which is independently funded by government. WorkCover Assist advocates for persons who are not union members or persons who do not wish to use a union-based service.
Both services employ skilled and committed advocates who will attend conciliation to assist you and to argue your case.
If you insert the name of the organisation assisting you with conciliation on the form this will mean that they will automatically be copied in on correspondence and also ensures that your matter will be scheduled at a time that is suitable to the advocacy service. This can be inserted as follows:
‘to be advised’
‘WorkCover Assist/Union Assist’
When completing the form you will be asked to specify the decision of the WorkCover agent that you are disputing. Normally, the decision will be contained in a written notice but sometimes it may be conveyed to you verbally by your WorkCover agent. In other cases, you may want to refer a matter to conciliation because the WorkCover agent has failed to make a decision about a particular aspect of your case- e.g. pay travelling expenses, approving surgery etc. This type of dispute should only be referred to conciliation after a reasonable period has expired for WorkCover to respond to your request. It is also useful to try and contact the WorkCover agent and request a response before referring the matter to conciliation. If these efforts are unsuccessful, you should refer the matter to conciliation.
You should insert the details of your dispute in the large box at the bottom of the form. If you have received a written decision from WorkCover that you dispute, you should include a copy of that decision.
These are a number of typical examples that could be inserted;
- ‘I dispute the decision to terminate my entitlements’
- ‘I dispute the decision to reject my claim’,
- ‘The WorkCover agent has incorrectly calculated my pre-injury average weekly earnings’,
- ‘The WorkCover agent has failed to pay travelling expenses forwarded to them on.’
- ‘The WorkCover agent has failed to approve my request for surgery which was submitted on..’
When you have lodged your conciliation form by posting it to the Conciliation Service, you will receive an acknowledgement. The Conciliation Service may also provide you with DVD which shows how a typical conciliation is conducted.
If your dispute involves medical issues, the Conciliation Service will provide you with some forms for you to sign and give to your doctors. This form requests the doctors to prepare a report on your condition and to send that report to the Conciliation Service. If the conciliation has not sent enough copies of the form you can contact conciliation and request more or, alternatively, you can photocopy the form. The bill for the preparation the report should be sent to the WorkCover Agent.
The Conciliation Service will contact you again and advise you that a date has been allotted for your conciliation. At this point, you should contact your conciliation advocate to advise them of the date and to make arrangements to meet with them. As they have been specified as your agent in the form that you lodged, they will have been copied in on all correspondence related to your matter. The Conciliation Service will also have provided to them any copies of medical reports that they have received about your matter.
The conciliator who will be handling your matter will then contact you to provide you with more information about the conciliation process.
Lawyers are generally not permitted to appear at most conciliation hearings, but two excellent and free advocacy services are available to assist you. Union Assist is an advocacy service for union members and WorkCover Assist is able to help other employees.
If you are unhappy with the outcome of conciliation, you are able to pursue your claim by court action.
Some disputes can also be resolved by referral of the dispute to the Medical Panel. Whether or not you should have your dispute referred to the Medical Panel is a complex issue, and depends on the circumstances of your particular case. A determination by the Medical Panel is final and conclusive and cannot be appealed against except in the rarest of cases. The Medical Panel can make binding determinations on issues such as whether you are incapacitated for work, whether incapacity is permanent and/or work related. For more information about referring to a Medical Panel click here. (or see below in FAQ section)
You should contact your lawyer for advice, preferably before you are referred to the Medical Panel. In some instances detailed written submissions should be made to the Medical Panel prior to a consultation with them to ensure relevant considerations are taken into account.
Also see blog articles for more information (there are heaps more under search term “ACCS”, “conciliation”, “medical panel” for example)
- Going to a Conciliation conference for your work injury
- Resolving workcover disputes with the Accident Compsensation Conciliation Service (ACCS)
- WorkCover terminates payments – conciliation or medical panel?
- What if a claim is rejected or notice is given that weekly payments will stop?
- Medical Panel or a judge
Frequently asked questions
The conciliator in my case has made a direction, what does this mean?
When a dispute is referred to the Accident Compensation Conciliation Service, every attempt is made to resolve the dispute. Generally speaking a Conciliator cannot make a determination about a claim. In some very tightly controlled circumstances a Conciliator can issue a ‘direction‘, ordering the limited weekly payments of compensation or medical expenses be paid. When a direction is issued, it means that the WorkCover agent or Self Insurer must pay as directed unless they obtain an order from a court, usually the Magistrates’ court, authorising them not to pay.
A Conciliator can only issue a direction if he or she believes that the WorkCover agent has ‘no arguable case‘. If a Conciliator thinks that that the WorkCover agent has an argument, which is unlikely to be accepted by Court, they cannot issue a direction as the agent has an arguable case.I have been served with court papers seeking a ‘revocation of the direction’ what does this mean?
When a direction is issued by Conciliator the case will automatically be reviewed by the legal Division of the WorkCover Authority. If the Division believes that it has an arguable case it will instruct its Solicitors to file an application to the Magistrates court seeking a ‘revocation‘ of the direction. This usually is done within 7 days of the Conciliator’s order.
If an application is lodged at the Magistrates court it is usually heard very quickly by the court. This can sometimes mean that a WorkCover recipient will be served with court documents listed for hearing on the next day or within a few days time.
This can be very distressing and cause unnecessary panic. If this occurs you should contact an expert WorkCover lawyer without delay. Workforce Legal can act for you at short notice. If you receive court documents or you think you are likely to receive them, contact Workforce Legal on (1800 134 204). If you have a lawyer acting for you already, you should immediately contact him or her and advise them that you have the court proceedings. They will be able to represent you at court.
You will not usually be required to come to court as neither you nor your lawyer is required to prove anything to the court at this stage. WorkCover or the Self Insurer must prove that they have an arguable basis for disputing your entitlement. If the Magistrate considers that an argument can be presented by WorkCover, even though it will be unsuccessful in the long run, they must revoke the direction in order to provide an opportunity to the parties to present their case.Will I be liable for legal costs for this revocation hearing?
No, you should not be liable for the legal costs of WorkCover or your own lawyer for this case. The WorkCover legislation makes it clear that you are entitled to have your legal costs paid irrespective of the outcome of the case.Can legal papers for the “revocation” case be served on a lawyer?
A Lawyer is able to accept service of court documents on your behalf. If you have received a direction and think it is likely that WorkCover will apply to revoke that direction, you could advise the Conciliator that you have instructed a lawyer to accept service of the documents on your behalf. The Conciliator would then advise the WorkCover agent about that arrangement and this would avoid court documents being served on you at your home. Alternatively, you or your lawyer could ring the WorkCover agent and advise that your lawyer is authorised to accept documents.Can I refer my claim to a Medical Panel?
Referring a matter to the Medical Panel is one of the ways in which a dispute with WorkCover can be resolved. A matter can be referred to the Medical Panel by
- A Conciliator at the Accident Compensation Conciliation Service.
- A court at the request of either party.
- By a WorkCover Impairment Benefits Officer at the request of a claimant who is disputing their percentage permanent impairment rating.
Any issue referred to a Panel must be a ‘medical question’ as defined by the WorkCover legislation. Where there is a major factual dispute, this issue may often not be referred to the Medical Panel as it is more difficult for the Panel to decide factual disputes.Should I seek for my dispute to go to a Medical Panel?
This is a complex issue. A decision of the Medical Panel is usually binding on the parties and a court is generally required to follow its decision. Therefore great care is needed in determining whether to refer a matter to a Medical Panel. If a claim for compensation is rejected or payments are terminated, a claimant is sometimes offered a choice at conciliation of either referring the matter to the Medical Panel for a final decision or referring the matter to court.
Choosing between these two options can be extremely difficult. Firstly, the option of taking a matter to court is only a real option if, either you are able to afford to conduct litigation or a lawyer is prepared to run your case on a ‘No Win – No Charge’ basis. Secondly, it is important to recognise that even if you took the matter to court it may still be decided by a Medical Panel because the other party has made that request. If a request is made to a court, it has no option but to refer.
In making a decision about which option to pursue, it is important to take into account the nature of the dispute and the type of evidence that is available. It is also very important to consider the effect that a positive or negative Medical Panel decision can have on other aspects of your claim. If possible, obtain advice from a lawyer about the merit of each option. Individual decision makers, whether at a Medical Panel or a court, can have different views. This difference is only natural for human beings. This can affect the outcome of a determination. The outcome from a sympathetic Medical Panel will be better than from an unsympathetic Judge. Conversely, the outcome from a sympathetic Judge will always be better than from an unsympathetic Medical Panel. It is not possible however, to know the composition of either forum in advance! What can be said however is that when the broad spectrum of decisions of both bodies is examined – it is difficult to see any difference in the success rate of each! Speaking in general terms, both courts and the Medical Panel tend to provide fair and consistent outcomes.What will happen when I attend the Medical Panel?
When a matter is referred to a Medical Panel for a decision to be made, it primarily involves a full medical examination of the claimant to the extent relevant for a claim. The Panel will be made up of a number of Medical Practitioners which will usually reflect expertise in the different areas of injury that a claimant has specified. Medical Panel doctors display a high level of independence. Their medical examinations tend to be very careful, professional and exhaustive medical assessments. Medical Panels are also very sensitive to issues relating to gender and cultural backgrounds. Indeed many claimants report a real difference between the often hasty and superficial examinations conducted on behalf of WorkCover earlier in a claim and the thorough Medical Panel examinations.
It is possible for a claimant, usually through their lawyer, to make a written submission to a Medical Panel about a matter. This usually only occurs if there is some particular or unusual aspect to the matter which needs to be drawn to the Medical Panel’s attention. If a written submission is made to a Medical Panel it is important to keep the submission very brief in order to ensure that it has maximum impact.
The way in which a claimant presents a Medical Panel examination is extremely important. It is only natural for a claimant to think that they have to argue their case when they attend the panel. All medical practitioners have various methods for checking the accuracy and consistency of the claimant’s presentation.
It is important to resist the very natural tendency to want to make sure that the Panel understands the full scope of the effects of an injury. What the Panel is interested in, is the careful and precise analysis of very specific symptoms. A very accurate description of the symptoms, presented without any embellishment will mean that the Panel will conclude that the claimant is reliable and honest. It is normal for specific injuries to have symptoms in a very specific anatomical pattern. For example, the distribution of pain in a leg from a back injury usually will be quite localized depending on the level of the disc involved. Simply, asserting that the entire leg is sore will not be as effective as giving a very precise and accurate description of the specific areas affected.Can I appeal the decision of a Medical Panel?
The decision of the Medical Panel can only be appealed on very narrow grounds. It is only possible to appeal the decision if the Panel has made legal error. It is not possible to appeal the decision of a Panel solely on the basis that it came to the wrong conclusion. In order to appeal a decision of a Medical Panel, it is necessary to demonstrate that they have made procedural error. This type of appeal is very technical and must be made to the Supreme Court within strict time limits.
If an appeal to the Supreme Court is upheld, the decision of the Medical Panel will be quashed and the matter sent back to the Medical Panel for a further decision. It is normal for the new decision to be made by different personnel at the Medical Panel.
[Source: www.workforcelegal.com.au]How will workcover investigate my claim? Will I have to attend medical examinations?
Attending medical examinations is a necessary part of a WorkCover claim. Failure to attend examinations at reasonable intervals may result in the suspension of a claim. However beware that the workcover insurer does not go on a “doctor shopping” spree, one of their favourite pastimes! Most lawyers would agree that one (to two if unstable) examinations per year is “reasonable”.
Most medical examiners attempt to determine what your injury is on the basis of clinical signs of injury. Some medical examiners retained by WorkCover (aka so called independent medical examiners) conduct a very brief and superficial examinations and provide reports that routinely assert that a claimant does not have an injury or is able to work.
These examiners are well-known to the courts and lawyers practising in the WorkCover jurisdiction. Little weight is placed on the results of these examinations by courts. Attending medical examinations can be stressful, but some simple steps will make an examination less stressful. You can find them under the keyword “IME”, for example more about IME and how to protect yourself; the dreaded independent medical examinations: a good video tutorial etc.
Will WorkCover ask me to make a statement about my injury?
A claimant may be asked to provide a statement to WorkSafe about the circumstances of their injury. A request for a statement can come from two different sections of WorkCover;
- Where a significant injury is involved, a request will often be made by WorkSafe investigators who are trying to determine the precise cause of injury and will be considering prosecuting an employer or other party for a breach of an Occupational Health and Safety regulation.
- A request may also be made by an investigator who has been retained by the claims management section of WorkCover, through a claims agent. The purpose of this investigation would be to determine whether liability should be accepted for a claim and/ or whether any other person might have caused the injury. If an injury was negligently caused by a third-party, WorkCover is entitled to sue that third-party to recover any amount paid out on the claim.
Should I give a statement to WorkCover about my injury?
Deciding whether or not to give a statement is a very complex issue. There is no obligation on you to provide a statement. If you have been involved in a major incident, and there is any prospect of your own conduct being called into question it can be very important not to provide a statement without legal advice. An investigator who has requested you provide a statement will always respect a request for you to consult a legal advisor before making a statement.
If you have suffered a significant injury that is likely to have long-term effects, it can be particularly important to provide a statement to WorkCover, but only in the presence of a legal adviser. A legal advisor can ensure that the statement is completely accurate. Some words which can be included in a statement, may appear to be harmless, but may cause complications further on in a case. For example, if a claimant suffered a major injury, and in describing their injury they stated “that it is possible they may have been distracted”, this might be used later on by WorkCover as the basis of an allegation of contributory negligence.
Many claimants wish to make a statement on the basis that they have nothing to hide and that they are keen to tell WorkCover about how their injury occurred. This position is understandable. Refusing outright to give a statement, may result in a claim being rejected. Some investigators may imply that the claim is very straightforward and that all that is finally needed is a statement to make sure that it goes through. This is rarely the case. Remember, no matter how supportive and compassionate an investigator may seem, their job is to determine whether there are any grounds for a claim to be rejected.Will WorkCover try to film me?
Surveillance of claimants under WorkCover does occur from time to time. The incidence of surveillance is much less than the public perception of its frequency. Nonetheless it is not uncommon for it to occur.
The cases where it is most likely to occur are the following types of claims where:
- The injury is not readily demonstrable,
- Employers are strongly resistant or hostile to a claim,
- A claimant has been in receipt of weekly payments for an extended period
- Disaffected persons, e.g. former partners, neighbours or relatives etc have made a report to WorkCover about activity.
The WorkCover Authority considers that surveillance of a claimant is a legitimate tool for management of a claim. The WorkCover Authority does however issue of code of conduct to its investigators under which they are expected to operate. Click here for PDF document Code of Practice for Private Investigators and link to WorkSafe website www.worksafe.vic.gov.au. The use of surveillance can occur at any time during a claim and is not limited just to long term claims or court cases.
Occasionally, information from surveillance can cause considerable damage to a WorkCover claim but this is most commonly limited to those cases where there is clear dishonesty. For example, film of a claimant working smashing a concrete block with a sledgehammer, could destroy the claim for compensation for a back injury. These cases of dishonesty are rare. Most of the difficulties that result from surveillance do not come from the film or information itself but from its effect on a claimant’s general credibility. It is common, in the course of the case, for a WorkCover medical examiner to ask a claimant about whether they can undertake various activities. Similarly in some court cases a claimant can be asked whether they are able to undertake activity such as washing the car. If a claimant denies an ability to undertake this activity, but is subsequently shown on film or other evidence, to be doing this activity then this will affect the claimant’s credibility generally.
Using our example above, if a claimant was asked whether or not they wash their car, or mow their lawn etc and answer that they do so but have some increased pain afterwards, it will usually not negatively affect the case in any way. In this circumstance, the film of the particular activity will not cause any difficulty. Where there is a clear denial of undertaking that activity, a film will have an effect, not because of the activities shown but rather because of the claimant’s denial of undertaking the activity. The claimant’s credibility will be negatively affected.
You can ind heaps of tips on surveillance on our blog by searching under the keyword “surveillance”. Our tips also have some handy tricks to keep in mind…What should I do if workcover is filming me?
- Live your life within the terms of your disability and undertake whatever activities you think appropriate to your disability. If you are thinking about undertaking a major activity in the future, tell your doctor about it and ask their advice about its suitability. Your enquiry will be recorded in the doctor’s notes and can be relied upon by you if necessary.
- Do not overreact to the prospect of surveillance. It is sometimes possible to misinterpret innocent or normal activities as surveillance. In rare circumstances someone watching your movements may be unconnected with your WorkCover claim and maybe linked to some worrying activity, for example planning a break-in to steal from your home. If you are concerned about this prospect you should ring the police and notify them of your concerns. Taking a record of vehicle numbers will be of some help. If the activity is in fact related to your claim the police will not advise you of this specifically, but may indicate that you should not be concerned about some possible criminal activity.
- If you commence any paid employment make sure you notify the relevant WorkCover Authority or your lawyer.
- When asked about what activities you can and cannot undertake, be particularly careful to specify the activities that you can do. You can go on to explain how each activity affects your level of pain etc.
- If you have information that your surveillance has breached a law such as trespass, photographing children without permission etc then you can report that conduct to direct to The Assessment Centre on 03 9641 1051 or contact the WorkCover Authority on 1800 136 089.
What happens if I can’t return to my old job because of my injury?
Returning to work is probably one of the most difficult areas you will have to deal with when you are injured at work. Many employers are excellent in getting their injured workers back to work but unfortunately, others are very poor. These employers are often intolerant of injured workers or provide unsuitable or humiliating work after injury. If you are able to work, returning to the right kind of job can be important for your future. Your employer is required to provide you with equivalent work if you recover fully or suitable employment if you do not. If an employer fails to provide appropriate work it can be an offence under the WorkCover legislation.
In order to have a better chance at negotiate a “satisfactory” return to work we recommend that:
- You discuss your condition with your treating medical practitioners so that you have a clear understanding of what activities you can and cannot do.
- Discuss with your doctor the need for a graduated return to work plan.
- Contact your employer’s rehabilitation provider and discuss your restrictions with them. You should also discuss the possibility of retraining with them. If you know of an alternative job that you think you can do at work, tell them about it. Your WorkCover Claims Agent will be able to give you the details of your employer’s rehabilitation provider. It is a good idea to use a rehabilitation provider as a buffer between you and your employer when negotiating the return to work.
- If you return to work, make sure that you regularly consult with your doctor to ensure that you are able to cope and that any work you are doing is not causing permanent damage to your condition.
- Ensure that your rehabilitation provider regularly monitors your return to work so that adjustments can be made if necessary
- Involve your union
I have received a formal job offer – what should I do?
It is very important that you do not reject a job offer outright. If you unreasonably reject an offer of suitable employment there is a real risk that any weekly payments of compensation will be terminated. Unreasonable rejection of a job offer can be used against you in later claims such as a claim for damages. Therefore, we suggest that you do the following:
- When you receive an offer of employment, tell work or WorkCover that you intend to discuss the offer with your doctor.
- Fully inform your doctor about your ability to do the job and detail any concerns you may have about the job or the number of hours involved. Your doctor may suggest some modifications to the job or your rate of return.
- Ask your doctor for a certificate setting out those modifications.
- Give the certificate to work. This will be evidence of your doctor’s concerns and your reliance on your doctor.
- If you return to work, ensure that you attend your doctor and detail any difficulties you are having returning to work.
- Inform your rehabilitation provider of any difficulties you may have with the job.
- Discuss it with your Union (if you have Union rep/support)
Does my employer have to hold my job open?
The Victorian WorkCover legislation requires your employer to provide you with suitable employment (if you remain partially incapacitated) or equivalent employment (if you have recovered) within the first 12 months of your absence from work. Technically the failure to offer this employment is an offence against the WorkCover legislation and your employer can be prosecuted for breaching the section.
Only WorkCover can launch a prosecution and if you have not been offered suitable employment you should report the matter to the WorkCover compliance branch by phoning 96411555 .
Unfortunately this part of the WorkCover legislation it is quite toothless as prosecutions by WorkCover are very rare and an employer can escape any penalty if they can show that offering suitable work would cause them ‘ unjustifiable hardship’ (another “loose term”).
Can I be sacked while on WorkCover?
There is no real specific law that prevents an employer sacking you whilst you are on WorkCover.
It is however an offence for an employer to sack you solely because you have made a claim.
Sacking you whilst you are on WorkCover (or even after you have returned to work), may be an unfair dismissal or disability discrimination. If you are sacked whilst on WorkCover, your payments will continue provided you remain incapacitated.
Payments can be temporarily suspended if you receive termination or redundancy payments or if you access superannuation benefits.
Workers injured in the course of employment on or after 20 October 1999 may have a right to sue for damages for those injuries. This is known as a common law damages claim.
To be entitled to sue for damages the injury or injuries must be ‘serious’. Prior to lodging a request for an assessment to be made, your injury needs to be considered stable and stationary (A condition is stable and stationary when the condition is not likely to improve with further medical or surgical treatment. [This suggests that the condition has reached maximal medical improvement and that suitable rehabilitation has been carried out.])
Further, you must wait 12 months from your date of injury prior to lodging a request for assessment.
Within 120 days of receiving your claim, your workcover insurer must:
- accept or reject liability for each injury included in your claim:
- obtain an assessment or assessments in accordance with the Accident Compensation Act
- 1985 as to the degree of permanent impairment (if any) of any accepted injury
- Calculate any entitlement to compensation
An Impairment Benefit Specialist will be responsible for the management and review of your claim.
This process is separate to the day-to-date management of your WorkCover injury.
Once your injury has stabilised, the Impairment Benefit Specialist will arrange an impairment assessment. This will take place to decide your level of impairment. Based on this assessment of your whole person impairment, the Impairment Benefit Specialist will determine a compensation amount that will be offered to you. This will be offered through a Notice of Entitlement.
Should you have legal representation, this offer will be sent to your legal representative. And we certainly advice you to have legal representation!!!! Never sign or accept a Notice of Assessment without legal advice! Insurers are known to cheat injured workers. Moreover the insurance doctors (IMEs) will often under-assess your injuries (so you score less). You can appeal your impairment assessment at a medical panel.
Once the independent impairment assessment is carried out, you must make an application to WorkSafe Victoria seeking its determination as to whether or not your injury is ‘serious’. This application will be made through your legal representative. If it has been determined that your injury is serious, court proceedings can commence claiming damages.
Should your impairment benefit assessment show that you have a 30% or greater whole person impairment, you are able to commence the common law process.
What is common law?
To be entitled to sue for damages the injury or injuries must be ‘serious’, as defined in the Accident Compensation Act 1985. Before any court proceedings claiming damages can be commenced, the degree of impairment arsing from the injuries must be assessed and you must make an application to WorkSafe seeking its determination as to whether or not they consider the injury to be ‘serious’.
As mentioned above, legal representation will be beneficial throughout this process, as this process takes place through the court system.
In order to qualify with a ‘serious’ injury, you must satisfy either of the following tests:
- Have a whole person impairment of 30% or more or
- Satisfy the narrative test
When going through the Impairment Benefit process (IB) you will be given an Impairment rating.
This percentage will allow you to know whether or not you have a 30% or greater whole person impairment.
If you do not have a Whole Person Impairment of 30% or more, you may be able to access common law proceedings through the narrative test. Under the narrative test you must prove that you have any one of the following:
- A permanent, serious impairment or loss of body function
- A permanent, serious disfigurement
- A permanent, severe mental disorder or permanent, severe behavioural disturbance or disorder
- Have suffered the loss of a foetus
You must undergo the Impairment Benefit process prior to undertaking common law proceedings.
If your level of impairment is judged to be 30% or less whole person impairment, you must apply to WorkSafe Victoria for a Serious Injury Certificate. Once this certificate has been issued, your proceedings can commence.
Upon completion of the common law process, you may be awarded damages for pain and suffering, economic loss, or both. To claim damages for economic loss, you must show a loss of gross income of 40% or more that will continue permanently. In this area, the courts will look at what you were earning for the three years up until the date of your injury. The courts will also look at what your earning capacity was likely to have been for the three years after your injury, should the injury have not occurred.
Lump sum payments
WorkSafe can award lump sum compensation payments for permanent significant injury. These are part of the scheme of benefits that WorkSafe manages. The criteria for entitlement to a lump sum claim are tough and claims can be rejected by WorkSafe. The best rule if you are considering making a lump sum claim is therefore to get legal advice.
As a general rule, you must have suffered at least a 5% physical permanent impairment as assessed by WorkSafe (sometimes10%). Here’s a rough guide:
|30% psychiatric impairment:||$69,540|
Can you claim a lump sum payment under workcover?
You may be entitled to a lump sum payment if you are left with a permanent impairment because of your work injury. Unlike a common law damages claim, this is a no fault benefit, so you do not need to establish that your employer has been negligent. The benefit is calculated in accordance with a formula depending on the level of impairment you are assessed as having. An independent doctor would need to examine you in accordance with a guide published by the American Medical Association (4th edition).
There are minimum levels of impairment that you must have before you are entitled to an impairment benefit, depending on when you were injured and what injury you suffer. This benefit does not impact on your entitlement to weekly payments, medical and like expenses, or a common law claim. You do not need to pay tax on this benefit either.
What lump sums are available for permanent impairment?
If you suffer a work injury that leaves you with a permanent impairment, you may be entitled to receive a lump sum. Claiming a lump sum for permanent impairment can be, in some cases, straightforward, and in others, quite complicated. There are different types of impairment and different ways to calculate compensation for:
- Physical impairments
- Psychological impairments
- Hearing impairments
- ‘Total loss’ of the effective use of some body parts
All impairments must be assessed using technical medical guides, which are based on the AMA guides 4th edition.
How much will I receive for an impairment benefit?
Impairment benefit compensation is determined in accordance with a formula set out by law, dependent of the level of impairment you are assessed as having and the date of your injury. Once the level of impairment is accepted, you cannot negotiate on the amount of compensation that you are entitled to.
Psychiatric injuries are now paid at the same level as physical injuries. However, to receive any compensation for a psychiatric injury, you need to be assessed as having at least a 30% whole person impairment (primary psychiatric injury). This compares with 5% (arm/leg/back) or 10% for other certain physical injuries.
The amount that a person is entitled to increases by approximately $2,000 – $2,500 for each additional 1% impairment up to 30%.
When can I bring an impairment benefit claim?
You may only bring a lump sum claim once your injury has stabilised (that is, not getting any better or worse). At a minimum, you need to wait at least 12 months since your date of injury.
How long do I have to make an impairment benefit claim?
There is no time limit to make an impairment benefit claim. However, if you think that you may be entitled to lump sum compensation, you should seek legal advice as soon as possible.
You must bear in mind that if you have any common law rights, you only have 6 years from the date of injury to make a claim.
Making a claim for permanent impairment requires extreme care
Your impairment score can affect your right to recover damages in a negligence claim. When claiming it is important to make sure that:
- Your medical condition is relatively stable (please read our article “sometimes it’s worth waiting or delaying serious injury“)
- The full effects of your injuries have become apparent
- All affected body parts are claimed for in the application
- The correct assessment method has been used by WorkCover
- Any ‘total loss’ entitlement is claimed
The maximum amount payable for impairment is capped and is currently around $400,000 which applies to a whole person impairment of 80% or greater (NOT that much at all, contrary to popular belief. Most serious injured workers will get away with $10 to $20,000).
Where the impairment includes a total loss of the function of a specified body part, it can result in a higher payment which can be added to the residual impairment based rating for other aspects of the injury.
Impairment claims and workcover: the process
This is general information only and does not purport to be specific legal advice in respect of the injured workers individual entitlement. We advice any injured worker to seek decent legal advice.
Each impairment claim is different and in some circumstances an impairment assessment can have very significant effects. Where an injury is a result of negligence and a claim for common law damages is possible, it is important to be aware that the final impairment score can have a significant effect on an entitlement to damages.
Remember there is a strict 6 year time limit that applies to common law claims. This six year period can be extended by the processing period of an impairment claim. The processing period is calculated from the date of lodging the claim until 30 days after the final assessment of the impairment.
Physical injuries are assessed under the American Medical Association Guides for the Evaluation of Permanent Impairment ( the Fourth Edition). Separate guidelines apply for industrial asthma, some infectious diseases and psychological injuries.
Some assessments for impairment can be extraordinarily complex particularly where an injury has an effect on other body systems or on other medical conditions. It is extremely important that all the effects of an injury are claimed on the form as it is usually only possible to make one claim. (If there is not enough room on the form a separate sheet can be attached), For example, a physical injury may have some effect on a person’s hypertensive condition. The effect can be included in a claim for permanent impairment but it will raise complicated issues about its assessment and whether the worsening of the condition is permanent. Where there are complex interactions between injuries and other medical conditions, again it is recommended that you obtain legal advice in preparation of the claim.
Total Loss Injuries
For some injuries, it is possible to claim an additional or alternative payment for ‘a total loss’ of a body part. This obviously applies if there is an anatomical loss such as e.g. the amputation of the finger. A total loss can also apply even though there is no amputation of the body part but that part is totally useless. When in doubt, it should be claimed as a “total loss”. E.g. “total loss of ring finger“. i.e. “total loss R shoulder/arm”. For more information, see below.
An impairment from a psychological injury can be claimed if the impairment is directly related to a traumatic incident or a work stress. This is called a primary impairment or primary psychological injury. Unfortunately, a psychological condition that results from physical injury (sometimes called a secondary psychological condition), cannot be included in a psychological assessment (i.e. depression, anxiety, etc. because of the way you have been treated by your employer and/or workcover insurer).
The physical injuries can of course be claimed. This provision in the legislation is quite complex and illogical but, nonetheless, each assessment for a psychological impairment is divided into these components where appropriate and only the primary impairment is assessable.
However, for those “lucky” enough to have a 30% total permanent body impairment, secondary psychological injuries will be added to your claim for “pain and suffering”.
Impairment Thresholds and Values
The value of an impairment payment and the necessary percentage threshold for an injury can vary according to the date of an injury. The value of injuries is set out in the ‘Claims Manual’ –>Then Select ‘Chapter 12′ Benefits – Impairment;
Example of permanent impairment
The following are some common examples:
- 15% whole person impairment from a neck injury $28,948.00
- 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 a leg injury $103,900.00
- 11% loss of hearing on the National Acoustic Scale $18,400.00
The following are examples of more complex impairment claims:
- 31% whole person impairment resulting from the combined effects of a penetration injury to the chest, shoulder impairment and subsequent infection. The impairment includes some minor impairment of the liver and kidney as a result of the antibiotic treatment for staph infection $66,090.00
- 41% whole person impairment arising from a myocardial infarction caused by work $104,890.00
- 80% whole person impairment arising from multiple injuries sustained in a fall which included incomplete paraplegia, shoulder wrist and knee injuries and psychological damage $373,420.00
Submitting a claim involves the following steps;
- Usually it is necessary to wait 12 months from the date of injury and until the condition is stable. Some injured workers need to wait YEARS before their injuries can be deemed stable under the legislation. And sometimes it’s a good idea to wait or delay “serious injury“!
- A claim for permanent impairment should be completed and submitted to your employer. The form is a ‘Workers claim for impairment benefits form’. The form can be obtained from your lawyer, contacting your insurer or the Victorian WorkCover Authority (WorkSafe)
- A photocopy should be sent to your Insurer. If you have written medical information (including written scan reports) about your condition it should be included with this. (Do not send any X-rays or scan films).
- The claim form should be completed as accurately as possible. All the effects of injury should be included. For example, where there is a psychological condition and physical injuries both should be specifically mentioned. In some cases, people who take medication for physical injuries may have stomach problems which can form part of the impairment claim.The stomach problems must be specifically mentioned on the claim form. If the injury or surgery has resulted in a scar, ‘scarring’ should also be claimed. Best is to seek legal advice and assistance to lodge this claim!
- Once the claim is submitted, the Claims Agent will arrange medical appointments. These appointment dates will be notified to you direct. Usually, a medical examination is necessary for each type of body system for which you have claimed an impairment.
- The medical examiner will assess your level of impairment in accordance with the appropriate scale. That is,they will send you to an insurance doctor (independent medical exam).
- When the medical assessments are received by the WorkCover agent, it will issue a notice of entitlement within 120 days. The notice will indicate which injuries WorkCover accepts and which it does not. If it rejects injuries, it is possible to refer the dispute to the Accident Compensation Conciliation Service within 60 days of the notice.
- If you dispute the assessment of your impairment, you can refer the dispute about the extent of your impairment to the Medical Panel. You can choose to dispute the assessment of your physical impairment, your psychological impairment or both. Great care is needed in deciding to dispute an assessment if you have been offered money, as it is important to be aware that the Medical Panel can not only increase, but decrease the assessment.
- The decision of the Medical Panel is final and the Claims Agent is obliged to adopt that assessment. A claims agent will not re-offer a payment on the basis of the original assessment. A decision of a Medical Panel can only be appealed in very rare circumstances where the Panel has failed to conduct its examination procedures properly and fairly or has made an error in legal interpretation.
- In the event that the Medical Panel decreases the assessment, the insurer will not re offer the previous amount. A matter should only be referred to the Medical Panel if there is a reasonable prospect of concerning or increasing the assessment.
Total Loss Injuries
The WorkCover legislation contains specific provision for lump-sum payments where there is a ‘total loss’ of a body part. The Kennett government was forced to introduce this provision because, in many instances, the payment under the assessment of an injury under the Americans Guides was well below the equivalent payment for total loss of body part in the prior compensation legislation.
A full list of ‘total loss’ payments by date of injury is available on the WorkSafe web site.
The concept of ‘total loss’ is often viewed by WorkCover or self insurers as only applying to anatomical loss, such as amputation. This view is not correct and has not been supported by the courts. If a particular body part is considered to be totally useless for occupational purposes, it may still be treated as a total loss even though there has been no amputation.
In some cases of clear traumatic injury these payments are very straightforward. For example, total loss of the two joints of an index finger entitles an injured worker a payment of $36,670. The injured worker is entitled to choose between the Americans Guides assessment or the ‘total loss’ payment, whichever is higher. Usually, for minor or moderate injuries of the ‘total loss payment’ will be higher.
In some cases of major trauma, the ‘total loss’ accident of the Act may be lower than the American Guides payment.
In some cases, a claimant will have multiple injuries, some of which may be ‘total loss’ injuries and others which may be assessed will only be under the American Guides. That part of the American Guides score of which relates to the ‘total loss’, will be separately identified enabling a claimant to elect between the payments. Where a ‘total loss payment’ is accepted, the remaining payment under the Guides score is reduced by the percentage attributable to that component of injury. As the compensation payable under the Guides score increases exponentially, it can be important to carry out the entitlement calculations very carefully.
- Andrew suffered an injury to his right hand from using circular saw. He suffered an amputation of the index finger which was re attached. The result was so poor it was considered a ‘total loss’ for impairment assessment purposes. He lost the first joint of his little finger and had sensory changes in his middle finger. The impairment score under the America guides was 19 % which would have entitled him to a payment of $37,802.00. Andrew’s ‘total loss’ of the index finger entitled him to a payment of $48,160, the total loss of the first joint of the little finger entitled him to a payment of $13,750.00 and his residual AMA score for other areas was 5% which entitled him to a payment of $9,650.00. His total impairment payment was $71,560.00.
- Ron suffered a very severe arm injury when his arm was dragged into a machine at work. Although Ron’s right arm was not amputated, it had so little function it was accepted as a ‘total loss’ for the calculation of an impairment payment. Using the AMA Guides only, Ron’s impairment score for the physical injuries (which included damage to the shoulder and the arm with additional allowance for scarring etc.) was 67%. This would have entitled Ron to a payment of $211,630.00 based on the percentage. However, Ron was able to elect to receive a payment for ‘ total loss’ of the arm’. This payment was $160,450.00.His residual impairment scores for his physical injury under the AMA and other Guides (after removing the percentage score unrelated to the arm) was 53%. This entitled Ron to an impairment payment of $155,770.00. The amount of the two payments combined was $304,150.00 which was considerably higher than a payment based solely on the AMA Guides score.
- Laura became a paraplegic as a result of a work accident. Laura’s impairment score under the AMA and other guides was 75% which entitled her to an impairment payment of $316,220.00. Laura was able to claim an alternative payment or a ‘total loss’ which was described as paraplegia. The amount payable for this ‘ total loss’ was $229,250.00. As the impairment payment under the AMA and other guides was higher than the total loss payment, Laura elected to receive the payment.
Also see for related articles:
- can I claim compensation for pain and suffering under workcover
- Medical Panel or a judge
- the current workcover system for impairment rating is not fair at all
Please read our article>>Can I claim damages for pain and suffering
Under some circumstances, where the injury is severe or there is obvious employer negligence, your claim for compensation could be contested in Court. These are called Common Law claims and typically they result in much larger payouts than those regulated by WorkSafe.
How big a common law payout? A rough guide to WorkSafe compensation
Note: these amounts are awarded for pain and suffering. Additional lump sums can sometimes obtained for loss of earnings.
|Spinal Cord damage consisting of immobility in affected area (e.g. upper or lower limb):||$250,000 – to the maximum of $511,920|
|Spinal fusion surgery:||Good surgical result: $150,000 – $250,000
Poor surgical result: $250,000 – to the maximum of $511,920
|Discetomy surgery:||Good surgical result: $100,000 – $150,000
Poor surgical result: $150,000 – to the maxiumum of $511,920
|Laminectomy surgery:||Good surgical result: $100,000 – $200,000
Poor surgical result: $200,000 – to the maximum of $511,920
|Foraminectomy surgery:||Good surgical result: $150,000 – $200,000
Poor surgical result: $200,000 – to the maximum of $511,920
|Common back conditions|
|Non surgical back injury e.g. minor disc bulge or prolapse, with no nerve root impingement:||$100,000 – $200,000|
|Spinal Stenosis:||$100,000 – $300,000|
|Spondylolysis:||$100,000 – $300,000|
|Spondylotic Myelopathy:||$250,000 – to the maximum of $511,920|
|Cervical fusion:||Good surgical result: $150,000 – $250,000
Poor surgical result: $275,000 – to the maximum of $511,920
|Non surgical neck injury e.g. minor disc bulge or prolapse, with no nerve root impingement:||$100,000 – $200,000|
|Mesothelioma:||$250,000 – $400,000|
|Other respiratory conditions:||$80,000 – $400,000|
|Loss of sight in one eye:||$175,000 – $250,000|
|Psychiatric injury:||$100,000 – $200,000|
|Head injury:||$150,000 – $400,000|
|Shoulder injury:||$75,000 – $300,000|
|Paraplegia:||Likely to be the maximum of $511,920|
|Quadriplegia:||Likely to be the maximum of $511,920|
Can I claim damages for pain and suffering under workcover?
Can I sue for damages?
A claim for damages (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. You may also be entitled to claim for the income 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 whilst traveling for work, but it is a transport accident, it is likely to be made under the Transport Accident Compensation (TAC) 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 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
- 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 gates that you must pass through to succeed. It is important to remember that you must pass through all gates. This means that even if you have the key to gate number two or three it is of no use, unless you can pass through gate number one “the serious injury gate”. 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”. If you wish to understand more about the definition of a serious injury, click here.
When can I claim economic loss damages in a common law claim?
The WorkCover legislation only permits 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), AND/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 research and document the financial effects of an injury on a claimant. We advise you seek legal assistance!
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 approximately $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. (See Can I claim compensation for pain and suffering under workcover).
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 now (2010) approximately $
468,720.00. $511.000.(See Can I claim compensation for pain and suffering under workcover)
More blah blah about Damages for Pain and Suffering
Placing the dollar value on the pain and suffering somebody has experienced and is experiencing and will experience is almost an impossible task.
Many injured workers say that no amount of money can compensate for the pain and suffering experienced.
Courts can nonetheless only award financial compensation and, therefore, have to make an educated guess /estimate of the value of your pain and suffering.
The WorkCover legislation has a maximum cap on pain and suffering damages of $468,720.00. This level is indexed annually and only applies to the most severe cases. For example, a complete quadriplegic person (paralysed from the neck down)
The type of case that would attract the maximum payment would be for example a young quadriplegic or a person who had suffered multiple limb amputations.
A person who has suffered a severe head injury and is in a permanent coma may get a lesser payment than someone else with a similar injury that has insight into the effects of their injury. This occurs because the person in the coma, although grossly disabled, may have no ongoing perceived ‘experience’ of pain and suffering.
In assessing an injured worker’s pain and suffering, a court is not restricted to the clinical concept of pain but can look at the wider social effects of an injury or how it has impacted on the person’s life. These include, for example, the effect of an injury on the ability to perform domestic, social, sexual, sporting,hobby and work activities.
Each case will be assessed on its own factors. A person who has suffered a severe head injury and is in a permanent coma may get a lesser payment than someone (with a similar injury) who has insight into the effects of their injury. Again this is because the person in the coma, whilst obviously severely disabled, may have no (ongoing) ‘experience’ of pain and suffering.
An injured worker who suffers a crush injury to the hand is likely to receive a significantly higher assessment if, for example, their hobby is playing classical guitar.
A younger person, who is likely to experience the consequences of their injury for a longer time, may receive a higher payment than a person with a similar injury who is considerably older.
A payment for pain and suffering is likely to be considerably higher for a person who has had or will undergo surgery or many more future surgeries when compared to someone with a similar injury who does not undergo painful medical treatments.
Assessing all these elements to a claim for pain and suffering damages is obviously very complicated and not always objective. What you, your lawyer or your treating specialists think about your injury and level of pain and suffering may well be strongly contradicted by what the (greedy) workcover insurance company and their doctor thinks about it – especially when it is about paying compensation in money.
The overriding principle adopted by the courts is that any allowance for pain and suffering must be proportionate when compared to the general range of injuries. This means, that when assessing the value of a claim for pain and suffering damages, a court must compare the injured worker’s position with its experiences of other cases where decisions have been made about the value of this component of claim.
No two cases are identical – comparisons with other cases can only be indicative (or a guide) rather than decisive of an entitlement.
An amount of an assessment for pain and suffering damages must be reduced by the amount of any impairment payment already received in respect of the same injury (i.e. lumpsum).
Pain and suffering damages can also be reduced by the extent to which a person might be considered to have contributed to their injury.
Note | disclaimer: This is an informative article and has been compiled to the best of my understanding of the law based upon publicly available material, and should not be interpreted as legal advice in any shape or form! You must seek professional legal advice, consult an experience work-injury lawyer!How damages for economic loss are calculated
In order to claim common law damages you must be first certified as having sustained a serious injury and must be able to prove negligence on the part of your employer or another person (i.e. a colleague, co-worker etc).
If you are entitled to claim damages and if this includes economic loss damages, very strict legal principles apply to the calculation of a “loss”. This area of law is extremely complex and you need to – of course- discuss all of this with an experience work injury lawyer. In some cases, for example, you may be better off not claiming economic loss but opting to stay on your weekly payments as they may add up to more over the years (depending on your age and injury etc).
How damages for economic loss are calculated
Set out below are the major principles of the approach that a court must take to calculate the damages. (Obviously each case is different and this information is not intended to be a substitute for legal advice ). These principles are as follows:
- A court must first carefully assess your pre-injury earnings/income. These will almost always be the most accurate guide to your future earning potential had you not been injured. If there is a special “feature” in your circumstances which establishes or shows that you would have (not may have) had significantly increased earnings in the future, a court can take this into account. For example, you were injured at work in your job A. You job A was terminated because you were physically unable and would never be able to return to job A. You retrained a bit, had more surgeries, moved into a desk-type work job (job B) for some time, got promoted to job C where you actually earned way more than in your original job A.You had more surgeries etc, then things became worse and worse with your injury, you became incapacitated, totally unfit for work and even got sacked because of your injury.
- A court must then assess your future potential for earning income following your injury. This is the most difficult part of an assessment because the court does not look solely at your post injury earnings (if any) but will look also at your actual potential. This means that even if somebody is not working or earning income, it is possible that a court, on the evidence before it, may decide that you are capable of light work and thus earning a specific amount per week. In most cases there is usually very different medical evidence called by both parties about your capacity for work following injury. If a court considers that the you have a potential to earn income following injury, the assessment of a future lost income will only be on the difference between the lost potential earnings and the post injury earning capacity.
- A further component of the loss of earnings must be calculated. This loss relates to your superannuation fund. If a you have not been receiving income, and possibly only receiving WorkCover payments, you will have missed out on your employer’s superannuation contribution. This loss is calculated for the past and for the probable loss in the future . In addition to the lost contributions, it is necessary to calculate the lost income which would have been earned in your superannuation fund had the additional money been received.
- Having calculated the weekly loss of earnings, this loss will be then converted into a ‘net loss’ i.e. after the payment of taxation. This is because there is no taxation on damages and thus the calculation of a gross weekly loss would in effect over compensate you.
- After the weekly loss in the future has been assessed (this assessment can take account of fluctuations e.g. for periods of total absence), then a court is required to estimate your likely retirement date had you not been injured. Again, this is an extremely difficult thing to do. It involves some heavy guess work. This is made even more difficult by the fact that many people are tending to work longer now than in the past or to work part-time after normal retirement age. In each case a court will take account of your evidence as to your intention had you not been injured. The court will also take into account other evidence such as the average retirement date in the particular industry etc. The court will determine what they think your likely retirement date would have been. Obviously, insurers will argue strongly that you would have retired early e.g. 55 or 60 had you not been injured. This is because the damages will be less as a shorter period for income loss will be claimable.
- Having decided the weekly loss and the number of years which the loss is likely to occur, a court is then required to discount the gross amount. The first discount factor is contained in the WorkCover legislation which applies a percentage ‘notional’ interest rate which a capital amount can earn. This occurs because when the gross amount of damages is calculated, it will not be paid slowly each week over many years but will be paid in a single lump sum. Obviously the value of an amount paid over many years is smaller than if it is paid immediately as damages. This is because you have the ability to invest those funds and obtain interest on those funds. The WorkCover legislation requires this to be done on a 6% discount rate and actuarial tables are used to calculate this result. Another way to look at this discount is to view it as a calculation of the lump amount necessary to provide you with an ability to draw down on funds in such a way as to replace the net lost income so that the fund will be depleted by the estimated retirement date.
- The next discount which is applied is for what is quaintly termed ‘ vicissitudes ‘. This term is used to describe the risks that everybody faces in their life which can have a potential effect on your ability to earn income in the future even if you had not been injured. Some people are ‘run over by a bus’, involved in motor vehicle accidents, suffer cancer or other medical conditions that may have stopped them working in any event. The courts therefore apply a discount to take into account this risk in the future. Normally, a court will apply a 15% discount to the capital amount to take account of this risk.
- The estimated past loss and future loss are combined and this constitutes the economic loss damages. In some cases a court may be required to apply a further discount to what is known as “contributory negligence”. This occurs where a defendant has been successful in getting the court to accept that you were in part to blame for your injury. For example, if a court concludes that you were 10% to blame for the injury then the gross damages calculated on the basis set out above are further discounted by this percentage.
- When a court makes an order for the payment of damages it is required to deduct from any pain and suffering damages any amount paid for permanent impairment. It is also required to deduct any weekly compensation paid in the past from the economic loss damages.
Many, if not most cases are resolved without going to court, through negotiation or mediation.
However, in private negotiations one further extremely important factor is taken into account and this is simply the question of whether you will win or lose the court case. Of course if you loose the case no damages are payable.
In some cases it is possible for your lawyer to make a very good assessment of the chances of success in court. In other cases it is extremely difficult as it may simply turn on which evidence the jury or Judge is likely to accept. This is particularly difficult to predict where a jury is involved. It is therefore common for these risks to be factored into working out the ‘commercial value’ of a case.
When your damages are being assessed by your lawyer, many other factors must be taken into account: including additional legal costs incurred in proceeding to court, your exposure to other party legal costs (if any) from rejecting an offer, liability refunding Centrelink etc. the calculation of economic loss damages is an extremely important issue that you should understand in your case.
It is also important to appreciate that if your lawyer is experienced and familiar with outcomes at court he or she will be able to give you the benefit of their skill and knowledge. So, get yourself a damn good lawyer!
Note | disclaimer : This is a informative guide only, compiled to the best of my understanding of the law and publicly available material, and should not be interpreted as legal advice in an form or shape! You must seek professional legal advice.Can I claim for stress under workcover?
Making a claim for stress under workcover can be …stressful!
If your stress condition is caused or aggravated by work, workers compensation is available.
There is, however, an exception in the WorkCover legislation (VIC) which is often misused by employers and claims agents to reject work related stress claims.
The exception generally provides that workers compensation is not payable if the stress is predominantly caused by:
- An employer taking reasonable action in a reasonable manner to transfer, demote, discipline, redeploy, retrench or dismiss a worker; or
- A decision by the employer based on reasonable grounds not to award or to provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with employment to the worker.
- An expectation of 1 or 2 above.
The scope of this exclusion is quite narrow for the following reasons:
- The exception to the above is very narrow and only applies to reasonable action taken in a reasonable manner. Compensation is payable for stress where reasonable action is taken in an unreasonable manner or unreasonable action taken in a reasonable manner; and
- Often the action to transfer, demote, discipline, redeploy, retrench or dismiss a worker is the last stage in a chain of events and the evidence will show that the action has been provoked by poor performance, which is an effect of general work stress which predated any action to transfer, demote, discipline, redeploy, retrench or dismiss a worker.
Workcover stress claims
Stress claims are one of the most difficult areas for WorkCover claims. The following issues are set out to provide assistance to workers who have or may be submitting a claim in respect of stress arising from employment.
Stress is a general term which is often used to describe a psychological condition. The term is used loosely to describe the feelings that range from ‘feeling pressured’ to being psychologically or psychiatrically ill.
- The definition of an injury under the WorkCover legislation specifically includes a mental or psychological condition which was caused or made worse by work. A stress claim is a perfectly legitimate WorkCover claim.
- Under the WorkCover legislation a stress condition is classified as a ‘disease’ which means that employment must be a ‘significant contributing factor‘ to the condition or its aggravation. Employment does NOT have to be the sole, major or dominant contributing factor in order to be a significant contributing factor. In fact, there can be a number of significant contributing factors only one of which may be related to employment.
- It is important to carefully assess whether you are eligible to make a claim for compensation, what the effects of making a claim may be and exactly what support a claim will provide.
- In some cases the source of stress is clearly identifiable. For example, an employee may be subjected to severe external stress in the course of their employment e.g. a police officer who has been threatened. Where the source of stress is external but encountered in the course of employment these claims are usually accepted readily by WorkCover.
- Other claims may involve stress arising from internal sources at the place of employment particularly from interpersonal interactions or supervisory disputes. In some cases this may involve inappropriate or illegal conduct such as sexual harassment, bullying or other criminal activity such as assault.
- In many other cases of the conduct giving rise to the stress may be more subtle and thus more difficult to establish. There is no specific rule on how to react to inappropriate conduct except that where the conduct is a sexual or other assault, it is important to report the conduct to superiors and where appropriate the police.
- Where a claim involves internal stressors which arise either from interpersonal conflict, supervisory or performance management issues, the WorkCover Authority is more likely to rely on a specific defence to a claim. This defence is contained in section 82 of the WorkCover legislation which provides that compensation is not payable if the stress condition is predominately related to specified management activity which is both reasonable and conducted in a reasonable manner ( See below).
- In order to submit a WorkCover claim, it is necessary to demonstrate that you have suffered an ‘injury’ within the meaning of the WorkCover legislation. This means that you must demonstrate that you are suffering from a clinical medical condition rather than mere emotion. The best indicator of whether or not you are suffering from a medical condition is whether or not you are having treatment for the condition.
- If you have not sought medical treatment for your stress condition, this does not mean that you are not suffering from a clinical medical condition. It does, however, make it more difficult to establish that you are suffering from a condition. Seeking medical advice when you are suffering the effects of stress is very important, irrespective of whether or not you are intending to make a WorkCover claim.
- If you are suffering from a medical condition which is likely to last for some time, it can be very important to submit a WorkCover claim. It is, however, important to carefully analyse your situation to be satisfied that you are suffering from a medical condition and that submitting a claim is in your interests.
- In some cases, where there is no evidence of a clinical condition, a stress claim is filed by an employee to help mediate or resolve interpersonal conflict at work. An example may be someone who feels that they are not properly treated by a superior might launch a claim to bring about a change in attitude. Lodging a claim where there is no significant clinical condition or any absence from work may be counter-productive because it changes the focus away from the inappropriate conduct of another person to the illness of the claimant. Often, it can be more productive to attempt to address the behavioural issues first without resorting to a WorkCover claim. Obviously, in cases of significant illness and absences from work there may be no alternative but to lodge a claim.
- In stress claims, it is important to be able to demonstrate the history of medical treatment which corroborates the source of stress. Therefore, if you do not wish to lodge a WorkCover claim at this time, either because your condition is not serious enough or you are concerned about your employer’s response, it is still very important that you attend your relevant medical practitioners and obtain medical assistance. This will mean that, if at a later date, you submit a claim you will be able to rely on the documented history of your attendances (which will most likely include the doctor’s notes as to the source of your stress).
- When you lodge a claim it will be necessary to specify in general terms the sources of your stress. This may occur briefly when you fill out the claim form or in more detail if you provide a statement to a WorkCover investigator or attend a WorkCover medical examiner. It is important that you understand the ambit of the exceptions in the WorkCover legislation under which compensation is not payable for stress from certain sources. These sources relate to reasonable actions taken in a reasonable manner by an employer to discipline counsel demote an employee etc. You should read the material in this website about this exception.
- Many cases are rejected on the basis that they fall within this exception. However, this exception is very narrow and many legitimate WorkCover claims are routinely rejected. Many rejected claims are, ultimately, successful when they are referred to conciliation, a Medical Panel or a court. In fact, no disputed court case has found in WorkCover’s favour on the use of this defence.
- When you lodge a WorkCover claim you may be approached to provide a statement on the circumstances of your claim. There is no obligation on you to provide a statement but failing to provide a statement can sometimes increase the chance of a rejection of your claim. You should read this website on providing statements.
- You will be medically examined by a psychiatrist retained by the WorkCover Authority. This is a normal process and the examination will canvass, in general terms, your life history. The psychiatrist will question you about your education, employment history, personal relationships and other factors. This approach is taken to enable WorkCover to determine whether there may be any other source of your stress.
- It can be important to understand the exact benefits that WorkCover provides. In most cases that are accepted, WorkCover provides some limited weekly payments of compensation and medical expenses. In more severe cases, long-term weekly payments may be made. In these cases, a limited lump sum for permanent impairment may also be available. In cases of serious permanent psychological illness caused through negligent behaviour, a claim for common law damages is possible. These later payments are only made in a minority of stress claims. Time limits apply to common law claims.
- Stress claims are more likely than other claims to be disputed by WorkCover. This is because these claims are highly volatile and usually involve very different perceptions of the same circumstances by employees and employers. Ultimately, a court must decide which perception is correct. This often makes it very difficult to predict the likely outcome of court proceedings. If a claim is rejected, it may be necessary for a claimant to carefully weigh up whether they should proceed to litigate their claim or refer it to a Medical Panel.
- Litigating a stress claim is an option that needs to be very carefully assessed. These claims are usually litigated in the Magistrate’s Court. When assessing whether or not to litigate, it is necessary to do a very careful risk analysis (what are the chances of success?) and then to undertake a cost benefit analysis (what net benefit will I receive after transaction costs, Centrelink and other payments are deducted?).
- If you decide to litigate a claim, it is important to appreciate that it may take 6 to 10 months for your matter to be heard by a court. During this period several things can occur. In some cases claimants obtain alternative employment, recover and lose interest in maintaining the litigation. In other cases, a claimant’s condition does not improve and the spectre and stress of litigation may add to the extent of the condition. This is not a good reason not to pursue litigation, but it should be carefully taken into account in deciding whether or not to litigate.
- In some cases, a person who has made a claim or is thinking about making a claim may look for an alternative strategy to overcome the source of their stress. This can include negotiating a separation arrangement or a redundancy package or changing employment.
- Some employers may offer such an arrangement. We do not recommend initiating this option yourself. Requesting this option without some indication that it may be available may provoke employer hostility. Each of these options has advantages and disadvantages which must be carefully assessed in each person’s own circumstances. This assessment can cover a whole lot of issues which may affect entitlements such as superannuation, leave entitlements etc. In these situations, it is important to make a realistic assessment about the chances of obtaining alternative employment. At this point, people are usually highly optimistic about those prospects. This may not reflect reality.
- A negotiated separation package will not usually extinguish a right to claim WorkCover at a later date. It might, however, make a later claim more difficult. Where obtaining a court order forms part of a settlement and an order is obtained, it is likely that future entitlements may be extinguished.
- Receipt of a redundancy or superannuation payment may disqualify a claimant from receiving weekly payments for a defined period.
When you suffer from a stress condition, the most important issue is to obtain competent professional medical assistance. This assistance will help you clearly analyse your options and to work out your long term goals. It is important not to lose focus about your long-term goals, as this will help you make choices about how to react to your situation. This will often, however, be difficult as the effect of stress itself can reduce your capacity to think clearly and focus on long-term goals.
Remember, that WorkCover will provide a measure of support to persons who have suffered a medical condition which affects their capacity for work. WorkCover, however, will not change structural problems that have given rise to a stress condition. WorkCover’s rehabilitation services may help to restore someone to alternative appropriate work. This, however, will be entirely dependent on the extent of an employer’s commitment to address the issue.
Claims for compensation based on stress are regularly accepted but many are disputed. Disputing claims at Conciliation is a relatively stress free process than can result in the acceptance of a claim. Pursuing a claim, thereafter, can require some resolve but it can ultimately be successful. In litigating all claims, it is important to ensure that the risks of litigation have been carefully evaluated and that a cost/benefit analysis of litigation has been undertaken.
When an entitlement WorkCover benefits is established additional entitlements can be available. These include a lump sum for permanent impairment and the right to pursue claim common law damages in limited circumstances. A claim for common law damages is restricted circumstances where the psychological condition constitutes a serious injury under the WorkCover legislation and negligence can be demonstrated. This is a very complex area of law and some recent have reinforced the fact that excessive work pressure or appalling management behaviour does not automatically constitute negligence. It is always necessary to demonstrate that it was reasonably foreseeable that the behaviour would result in psychiatric illness.
Also check out our workplace bullying guide>>
Resources and links
Workcover Victoria Impairment Assessors List: http://worksafevictoria.e-newsletter.com…2a389/page.html
- Online Claims Manual: the ultimate knowledge base!
- Ombudsman Victoria
- The law handbook online (vic)
- Victoria Law Today
- What can the Minister for WorkCover do for you?
- WorkCover Assist
- WorkCover Divisions Victoria Judgments 2012
- Legislation database VIC
- WorkSafe Victoria
- Accident Compensation (Occupational Health and Safety) Act 1996
- Accident Compensation (WorkCover Insurance) Act 1993
- Accident Compensation Act 1985
- Accident Compensation Regulations 2001
- Dangerous Goods (Explosives) Regulations 2000
- Dangerous Goods Act 1985
- Equal Opportunity Act 2010
- Mines Act 1958
- Occupational Health and Safety Act 1985
- Occupational Health and Safety Act 2004
- Occupational Health and Safety Regulations 2007
- Workers Compensation Act 1958
- Workers Compensation Regulations 1995
Note: Commonwealth legislation and regulations
- Age Discrimination Act 2004
- Asbestos-related Claims (Management of Commonwealth Liabilities) Act 2005
- Fair Work Act 2009
- Military Compensation Act 1994
- Military Rehabilitation and Compensation Act 2004
- Occupational Health and Safety (Maritime Industry) Act 1993
- Occupational Health and Safety (Maritime Industry) Regulations 1995
- Racial Discrimination Act 1975
- Road Safety Remuneration Act 2012
- Safety, Rehabilitation and Compensation Act 1988
- Safety, Rehabilitation and Compensation Regulations 2002
- Seafarers Rehabilitation and Compensation Act 1992
- Seafarers Rehabilitation and Compensation Regulations 1993
- Sex Discrimination Act 1984
- Work Health and Safety Act 2011
- Work Health and Safety Regulations 2011