Set out below are most of the frequently asked questions about WorkCover in Victoria aka as WorkSafe Vic. The answers are only relevant to the Victorian WorkCover scheme, and do not apply to WorkCover schemes in other states and – importantly provide general information only and are obviously not a substitute for individual legal advice. Most answers were provided by Workforce Legal.
Most Frequently Asked questions
Workcover: most frequently asked questions
I was injured at work – what should I do?
- Immediately notify your employer of your injury. It is very important to report your injury as soon as possible, within 30 days to avoid complications in your claim.
- Obtain medical treatment for your condition.
- If you are unfit for work, request a WorkCover certificate from your doctor.
- Give your medical certificate and a completed claim form to your employer who should sign and return the workers copy to you, (Remember to complete the details on the rear of your medical certificate). Claim forms can be obtained from the WorkCover Authority, or Post Office.
- Your employer is required to forward the claim to the WorkCover authority within 10 days. The WorkCover claims agent must make a decision to accept or reject your claim within 28 days of the receipt of the claim by your employer. If your employer refuses to accept a claim, it can be lodged on the WorkCover Authority direct at 222 Exhibition Street Melbourne.
- Also see our post on how to fill in your injury claim form and the importance of an accurate claim form
What must I prove in a claim for damages?
Claiming damages can be a very complicated process. Under WorkCover, there are three elements that you must establish to obtain common law damages.
- That you are suffering from a “serious injury.“
- You have suffered loss and damage as a result of your injury.
- Some other person was negligent.
Can I claim economic loss damages in a common law claim?
- If you are certified as having a serious injury under the ‘quantitative test’ (i.e. an impairment rating of 30% or more), OR
- If you can show that your earning capacity has been permanently reduced by at least 40 %. This involves will be a very complex assessment of the claimant’s earnings and earning capacity 3 years before injury and a claimant’s earning capacity (not just actual earnings) 3 years after injury.
Can I claim for work causing death?
If a person dies as a result of a work injury or a medical condition caused or worsened by work, it is possible to make a claim. People entitled are:
- A spouse (even if they also work).
- Dependent children including full time students up to age 21.
- A partner of the deceased worker.
- Anyone else who was wholly or partly dependent
What Compensation is covered and paid for?
- Any disease caused by work.
- Any disease or pre-existing condition made worse by work.
- Injuries suffered whilst travelling as part of work.
- Injuries suffered whilst having medical treatment for a separate work injury.
Does my employer have to continue to contribute to my superannuation fund whilst I am off work?
There is no obligation on your employer to contribute to your superannuation fund whilst you are absent from work on WorkCover.
Does my weekly payment include my employer’s contribution to my superannuation fund?
Unfortunately, your WorkCover weekly payment will not include your 9% superannuation guarantee levy contribution which is made on your behalf by your employer. If you were injured in 2010 Workcover contributes to super.
Does my employer have to hold my job open?
The WorkCover legislation requires your employer to provide you with suitable employment (if you remain partially incapacitated) or equivalent employment (if you have recovered) – in Vic -within the first 12 months of your absence from work.
Can my employment be terminated while on WorkCover?
There is no specific law that prevents an employer sacking you whilst you are on WorkCover. However your employer has a duty of care to provide you with employment or alternative employment during the first 12 months following your injury (Vic). It is however an offence for an employer to sack you solely because you have made a claim.
For time frames in other states, see our Resource Section: workcover employment issues
How many times a year can I be sent for a review (IME) by the Insurance Agent?
Once every two years they can send you to one or more of their practitioners Psychologist/Psychiatrist/ Surgeon/Physiotherapist/ Vocational Assessors other. If you feel they are sending you excessively to see too many doctors, you should forward in writing a letter of complaint to the insurer and to Workcover.
Also read our useful article on how to prepare and protect yourself for an independent medical examination and Disillusion yourself of any idea that the IME is independent
Can I have someone with me as support during my appointments?
Yes you can.
Can a medical review personal from Workcover do a review by phone with one my medical practitioners?
We suggest you advise your medical treaters and your insurance Agent that you do not give consent to verbal reviews by phone, but you must and will consent to be sent to see one of their practitioners for a written report.
An Examiner retained by the WorkCover Authority is required to conduct their examinations on a proper professional basis. If you believe that the Examiner has failed to meet the standard you can report the matter to the WorkCover Authority. If the examination involved serious unprofessional conduct, the matter could also be reported to the Medical Board of Victoria.
Can the Insurer stop paying for medical and like expenses, if they get a report from one of their practitioners that they have sent you to see?
Resolution of a dispute by a court should be a last resort seek legal advice.
What medical and like services am I entitled too?
Refer to our post:medical and like services, know your entitlements
Will WorkCover try to film me?
The WorkCover Authority considers that surveillance of a claimant is a legitimate tool for management of a claim. The use of surveillance can occur at any time during a claim and is not limited just to long term claims or court cases. Some, information from surveillance can cause considerable damage to a WorkCover claim. They will check on facebook and online communities for any information on you.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( VIC).
Can the insurance agent give surveillance that you are not aware of to their practitioners that are assessing you?
Yes, without you even being aware that you where under surveillance.
Can surveillance influence the practitioners that the insurer sends me to see?
Yes, most definitely.
Can I request surveillance tapes and reports?
Yes, Fill the Freedom Of Information Form, make a copy and send it to the Insurer.
How long does it take for WorkCover to make a decision whether or not to approve a treatment or test (i.e. MRI, surgery, physiotherapy,home help etc)?
Unfortunately the law doesn’t say anything about time frames. However the WorkCover Authority states that a decision should be made within 60 days, which can be a very long time, especially if your treatment is urgent. If you have not heard back from the insurers after 28 days, you are entitled to inquire about the decision. Make notes about who you spoke with, the dates, the names and positions of those you have spoken with. It also may help if your treating specialist writes in his/her referral that your requested test or treatment is URGENT.
WorkCover has terminated my medical treatment, what should I do?
The most common reasons for a rejection or termination of medical expenses are as follows:
- WorkCover medical advisers have indicated to WorkCover that the treatment is unnecessary.
- WorkCover considers the treatment is no longer effective or can be replaced by self managed home exercises.
- Weekly payments have ceased more than 52 weeks.
If WorkCover advise you that they intend to terminate your medical treatment expenses, you should refer the dispute to the Accident Compensation Conciliation Service for resolution of the dispute.
If I do not agree with decisions made by my Insurance Agent, how are disputes with WorkCover resolved?
Resolution mechanisms are 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. It is necessary to lodge an application for conciliation. You have 21 days to lodge a dispute form and ask for Conciliation.
Resolution of a dispute by a court should be a last resort as there are a number of alternative dispute. How many reports can I obtain from my doctors for conciliation?
As many as you see reasonable, to address your case.
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.
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.
Does the insurer send all of my medical reports from my doctors to the practitioners they send me to see?
Most likely not. They will choose which reports or how many they send. MAKE COPIES AND BRING ALL OF YOUR OWN REPORTS WITH YOU TO APPOINTMENTS…
Can I ask the Insurer for my file or the doctor’s reports?
Yes , fill in the Freedom Of Information Form , make a copy and sent it to the insurer..
Can I attend emergency at a private hospital if I am in acute pain from my injury?
Yes. The insurer will reimburse you the payment.
Does your GP have to send all of your medical history to the Insurance Agent when requested?
No, only material relevant to your current injury.
If my claims agent is unreasonable or always loses receipts for payments or does not comply with the act, can I request a change of person?
Yes , put your complaint in writing to the insurer and to Workcover and ask for a response.
Can the Insurers or their Legal Representative request my Passport?
Insurance Agents cannot request your passport but their Legal Representatives can for Court Proceedings only.
Can the insurer or their Legal Representatives obtain your financial records?
Insurance Agents cannot obtain your financial records but their legal representatives can for Court Proceedings only.
- Some legal Firms Offer a NO WIN – NO CHARGE fee arrangement.
- Some have fees based on the Practitioners Remuneration Order, the official scale that should be used for non litigated matters.
- Some firms do NOT use an “in house” scale, this usually greatly inflates charges.
- Some Firms Negotiate Fees.
- Ensure that legal fees do not erode your impairment payment.
- Looking for a good lawyer? Check out Shine Lawyers
5 Steps For Surviving WorkCover
- Make the most of your recovery.
- Understand your WorkCover entitlements.
- Assess your future work capacity.
- Retrain if necessary.
- Obtain legal advice sooner rather than later.
- Also see survival guide for injured workers
- Also see surviving workcover some more tips
Do you have a problem with your workcover claim?
Simply post it here and we and/or our many readers may be able to help you!
More FAQ can be found here: Repeatedly asked questions and answers about workcover Victoria
WorkSafe VIC (workcover VIC) frequently asked questions
List of questions
- What is workcover?
- Who is covered by workcover?
- Which “self-employed” workers are covered?
- What does workcover provide?
- Time limits under workcover
- What injuries are covered under workcover VIC?
- What type of diseases are covered?
- Am I covered traveling to and from work?
- Tell me more about the (very dodgy) AMA Guides for the impairment assessment
- Can I make a claim for stress?
- I was injured at work, what should I do?
- What is a serious injury?
- Can I sue for damages (Common Law claim)? Includes what you have to prove,Economic loss and Pain and suffering
- How are damages calculated? (Economic loss & Pain and suffering)
- Can I claim a lumpsum for impairment under workcover?
- Information for filing your own impairment claim
- What are Total Loss injuries?
- Can you give me some examples of impairment payments?
- How does workcover investigate my claim? (Includes info about making statements, medical assessments (IMEs) and the dreaded surveillance)
- Some useful information for attending “independent” medical assessments
- What medical treatment is covered under workcover?
- WorkCover has terminated my medical treatment, what should I do?
- What weekly payments will I receive? (Incl. calculations and what to do if your weekly payment rate does not seem correct, what should I do?)
- How are disputes with workcover resolved – Incl. information and FAQ re Conciliation (ACCS)
- Should I seek for my dispute to go to a Medical Panel? (Incl. what will happen at the Medical Panel, appeal)
- What happens if I cannot return to my old (= pre-injury) job? (Incl. what to do if you receive a formal job offer)
- Does my employer have to hold my job open?
- Can I be sacked while on WorkCover?
- How does WorkCover affect my superannuation?
Other useful information and updates about WorkCover VIC
Other important information about workcover VIC can be found under the search terms or tag WorkSafe Vic , or you can be more specific and for example search for “medical exams”, “medical panel”, or “case manager” etc etc.
What is workcover?
What is workcover Vic – aka WorkSafe Victoria
WorkCover covers most workers injured in Victoria or Victorian employed workers injured overseas or interstate in the course of their work. It covers all work activities including lunch breaks. Apart from some rare exceptions, coverage is given irrespective of who caused the injury.
Who is covered by WorkCover?
Who is covered by workcover Vic
Most employees working in Victoria (or outside Victoria, but who are based in Victoria), are covered by WorkCover. This applies to:
- A casual or permanent employee
- A full time or part time worker
- An “outworker” (working at home on piece rates)Some “self employed” workers
- Deemed workers (these includes jurors, work experience students and some volunteers) — Some persons are injured in circumstances that, strictly speaking, are not work activities. Special provisions in the WorkCover legislation or other legislation can either ‘deem’ persons as workers under the WorkCover legislation or, alternatively, can provide benefits similar to WorkCover benefits.If a person is ‘deemed’ to be a worker they have exactly the same entitlements as a person injured at work. They can also make use of the WorkCover dispute resolution systems such as conciliation.Other persons are only given benefits similar to WorkCover benefits. These persons are not in exactly the same position as a person injured at work and cannot utilise the dispute resolution processes of WorkCover.People who are covered in these circumstances include the following:
- Emergency workers injured during emergency activity.
- Jurors or persons injured whilst attending the jury service, travelling for jury service or during a break whilst attending for jury service.
- Volunteers assisting with ‘school work’.
- A person assisting police with an arrest, preserving the peace or other duties.
- An offender who is undertaking work as part of a correctional program of activity, a volunteer working in a prison or a person participating in a diversion programme.
- Members of the Victorian State emergency services participating in activities or training or travelling for activities.
- A casual firefighter who is injured during or because of emergency activity.
If you are injured whilst working in another State or Territory you may have other entitlements which can be affected by decisions made early in your claim. Contact a good personal injury lawyer as soon as possible for advice about where to lodge your claim.
If you are employed by the Commonwealth Government or one of its agencies such as Telstra, you will be covered by ComCare which is a different scheme. If you are unsure which scheme you are covered by, contact you union or a lawyer.
Some multi-state employers have now been allowed to become self insurers under the ComCare Scheme. These include some banks and transport companies. These are listed on the ComCare website, click here.
Which “Self Employed” Workers are covered?
Which self-employed workers are covered under workcover Vic
Even though you consider yourself as ‘self-employed’, you may be covered under WorkCover in some circumstances. Sometimes workers describe themselves as self-employed or as contractors but they are still covered if most of their work is for the one organization or if they are controlled in a similar way to an employee. Many owner-drivers, for example, are covered even though they provide their own truck and work on cartage rates. You are also covered if you run your own business as a company and can show that you were actually employed by your company.
What does WorkCover provide?
What does workcover Vic basically provide?
Under WorkCover, the following is payable:
- Medical treatment and rehabilitation costs
- Weekly payments of compensation
- Lump sum impairment payments (if you meet the tough criteria)
- Common law damages for breach of a duty of care (if you meet 3 stringent criteria – serious injury, negligence and have suffered loss and damage)
- Lump sums and pensions to dependants and spouses of deceased workers
Are there time limits under WorkCover?
There are complex time limits for both lodging Victorian WorkCover claims and commencing legal actions that apply to work injuries.
WorkCover time limits
The time limits for lodging claims are as follows:
- Weekly payment claims must be lodged as soon as practicable after the injury becomes apparent.
- Claims for death benefits must be lodged within 2 years of the death
- Impairment claims should be lodged as soon as the impairment is permanent but, usually, only after 12 months from the date of injury.
The time limits for lodging claims are usually extended if there is a reasonable reason such as not being aware of your rights.
Common law time limits
Time limits for commencing court actions for negligence are subject to very complicated rules and therefore you should obtain advice about your particular situation immediately.
For most work injuries which occur in Victoria (other than those under ComCare) there is a time limit of 6 years from the date of injury. This six year period can be marginally extended by the processing period of a claim for a permanent impairment lodged within the six year period. The processing period runs from the date of lodgement of a claim for impairment assessment until 30 days after the impairment is finally determined.
Where injuries occurred prior to 1997 and the true extent of incapacity was not known until after 1997, the limit can be 3 years from becoming aware of the extent of incapacity. There is also ability for a court to extend time limits in exceptional circumstances particularly in relation to latent conditions or diseases. (See Note: Important information about some workcover time limits and claims for damages- below)
Injuries covered by ComCare, non-work related injuries or injuries which occur interstate, can be subject to much shorter time limits.
Note: Important information about some workcover time limits and claims for damages
It is important to be aware about a strict time limit that applies to WorkCover claims for common law damages. If you are injured as a result of the negligence of another person then, subject to qualification, you may be entitled to pursue a claim for common law damages. This type of claim is subject to a very strict time limit.
Six (6) Year Limit
When the injury occurs in the course of employment, travelling during employment or an authorised recess or whilst obtaining medical treatment for a work injury, a time limit of six years from the date of injury applies. A complex application or court proceedings must be commenced within the six-year period. If these steps are not taken, the right to claim damages may be extinguished. Where an injury occurs through a gradual process, the six-year period is likely to run from the date upon which you first became aware of the condition.
Limited Extensions of six (6) year period
The six-year period can be marginally extended by the period taken by the relevant WorkCover agent to process a claim for impairment lodged within the 6 years. The period of six years is extended by the number of days between the date of lodgement of a valid claim for permanent impairment until its conclusive determination either by issue of a notice of entitlement which you do not dispute or a determination by a Medical Panel. In addition to this period, a further period of 30 days is added to the time limit where an impairment claim is processed.
Exceptional Claims after six (6)years
Special provisions apply to enable a claim to be brought outside the six-year period in limited circumstances. This is usually where the claimant was not aware of all the material facts within the limit period. These can include circumstances where a defendant is not prejudiced by a late claim and a court considers that it is in the interests of justice to grant an extension. In assessing whether to extend time, a court will take into account when a claimant became aware of all relevant information and was themself responsible for any delay.
Some medical conditions may not be fully diagnosed until well after the six-year period. These provisions mainly relate to latent diseases.
It is extremely important that a claimant who might be eligible for an extension obtain legal advice without delay.
Work injuries prior to 12 November 1997
Generally time limits have expired for claiming damages for work injuries covered by the Victorian WorkCover Scheme prior to this date. However, special provisions apply to an injury sustained in the course of employment before 12 November 1997. If the injury was suffered before this date but the true extent of incapacity did not become known until after that date, a time limit of three years applies from the date upon which the true extent of incapacity became known to the claimant.
The six-year time limit, as set out above, applies solely to injuries that occur in the course of employment where the Victorian WorkCover Scheme applies and the injury occurs in the State of Victoria. Injuries which do not occur in the course of employment or in employments not covered by WorkCover, (e.g. covered by ComCare) may have different time limits which can be much shorter than the six-year period. Similarly, injuries that occur in other States, even if they are covered under the Victorian WorkCover Scheme, can be subject to different and shorter time limits in those States.
What injuries are covered under workcover VIC
What is covered?
Compensation is paid for:
- Injuries that occur at work or during work activities (including lunch breaks)
- Any disease or pre-existing condition made worse by work
- Injuries suffered whilst travelling as part of work
- Injuries suffered whilst having medical treatment for a separate work injury
What type of diseases are covered?
If work has caused a disease or made a real contribution to worsening a pre-existing (and even non-work related) disease, compensation is payable. Work does not have to be the sole or even major contributing factor to the worsening of the disease. The number of diseases that can be covered by WorkCover is large and include:
- Cancer conditions: World health authorities believe that a significant number of cancer conditions have ‘industrial’ causes. This means that some cancers are caused by exposure to chemicals, pollutants and other substances where the exposure has most commonly occurred in the workplace.Some cancers, such as mesotheliomia have very specific causes e.g. asbestos. This can make a claim very straightforward.With some other types of cancers the link between work exposure and the particular cancer can be less clear. In some circumstances, cancer conditions can have multiple factors that might cause the cancer. For example, one of the recognised causes of bladder cancer is exposure to ‘tar pitch volatiles’ in metal smelting, but it can also be caused by smoking.When claiming WorkCover benefits for cancer it is important to:
- Carefully identify the exact type of cancer involved
- Identify the site of the primary cancer
- Attempt to identify the types of chemicals or agents which the worker was exposed
- Review reputable medical literature about the potential relationship between a cancer and the work exposure.
- This can be a complex process and establishing a possible proven relationship between a particular cancer employment requires expert assistance.
The WorkCover legislation contains a specific provision that can help in claiming WorkCover benefits for a cancer condition. Under this provision, if the medical literature shows that a particular occupation has an increased risk of causing a particular type of cancer, then it is possible to claim WorkCover benefits without proving the actual relationship between the cancer and work. This means that if you can prove an increased risk of a cancer from a particular type of work, WorkCover has to prove that it did NOT come from work.
- Heart attacks: Increasingly, medical research is demonstrating that there is a link between heart conditions and factors such as stress. It is possible in some circumstances to claim WorkCover benefits for a heart condition. It is necessary to demonstrate that the employment was a ‘significant contributing factor’ to the development of a heart condition. To be a ‘significant contributing factor’ it is NOT necessary that the work be the sole, major or even the dominant cause of the heart condition. In fact it is possible for work to be a significant contributing factor even though there may be other significant contributing factors to the heart condition such as diet, smoking or weight etc.When considering claiming WorkCover for a heart condition, it is important to understand that each case must be assessed on its own particular circumstances. Everything will depend on the exact pathology of the heart condition and the history of symptoms.In fact it is possible for somebody to have a cardiac incident at work but have no WorkCover claim because they cannot demonstrate a link between work and cardiac condition. It is equally possible for somebody to have a heart attack whilst on annual leave and have a strong WorkCover claim because they can demonstrate a link between the condition which, ultimately, causes the heart attack and work.Each claim depends on its own particular medical circumstances. For example, a person may suffer an arrhythmia whilst doing the work, but in the absence of any severe physical exertion or sudden psychological stress, it may be impossible to prove that the attack was causally related to work in any way. Conversely, somebody may have had a myocardial infarction on a weekend, but that person may, over the previous weeks or months, suffer from high blood pressure, worked under stress and continued to work despite the onset of chest pain. These factors may be enough to establish a link between employment and the cardiac condition.Continuing to perform physical or stressful work in the face of symptoms, may be enough to demonstrate that work was a significant contributing factor to the additional damage.The views of your treating doctor are important but his or her view may not be conclusive. Some doctors do not appreciate that it may be sufficient to demonstrate that work aggravated the condition.
- Strokes: Strokes or ‘cerebro-vascular accidents’, as they are medically described, can be severely disabling medical conditions. It is possible in some circumstances to successfully claim WorkCover benefits for these medical conditions.In order to be eligible for WorkCover benefits, it is necessary to demonstrate that employment was a ‘significant contributing factor’ to the development of the stroke.It is NOT necessary to demonstrate the work was the sole, major or even dominant factor in causing the stroke. It is possible to demonstrate work was a ‘significant contributing factor’ even if there are other significant contributing factors such as, a history of smoking, weight or even a pre-existing malformation in the artery or vein.Each case must be carefully assessed on its own circumstances. It is important to identify the precise nature of the stroke and then to assess the workers history of symptoms, to see whether a relationship with work can be demonstrated. For example one of the most severe types of stroke can be an aneurysm. In lay terms, this is a rupture of a blood vessel, which often occurs where arteries are converted into veins. This type of condition may be preceded by severe headaches over a period of time. Performing heavy physical work after the commencement of the headache may contribute to the acceleration of the rupture and thus establish that employment was a significant contributing factor to the condition.The views of your treating medical practitioners about the relationship of your condition to your work are, of course, important, but they are not conclusive. Some doctors do not appreciate that you may be entitled to compensation for an aggravation of your condition, even if work could not cause the condition.
- Industrial asthma and other lung conditions: Industrial asthma is a common condition which arises from exposure to dusts, chemicals and other substances at work. It is possible to claim for industrial asthma even if you had a pre-existing asthma condition, you were a smoker .You may still be entitled to claim if you can establish that work worsened your condition. There are many other lung conditions that may be related to work. These include conditions such as asbestosis, silicosis and pneumonocosis.If you can establish that there is a higher risk of you suffering from a lung condition in your type of employment then you do not have to prove that it actually came from work. In these circumstances WorkCover has to prove that it did not come from work.
- Infectious conditions such as Q fever:Many infectious diseases are related to work. These include conditions such as Q fever and Leptospirosis which have a clear link to specific employments such as meat workers. Other diseases may also be related to work for example a nurse may contract tuberculosis from being in contact with carriers of the disease. If this contact occurs in the course of work the nurse will be entitled to WorkCover benefits. Other diseases such as malaria, Ross River fever etc may be related to work if you can prove that your work expose you to the risk of contracting these diseases for example if you were sent overseas by work into an area where you were at risk of contracting malaria.In some cases it is not necessary for you to prove that you actually contracted the disease from work is can be sufficient that you establish that there is a higher risk of contracting this disease because of the nature of your work. If you can establish that this then you are entitled to WorkCover benefits unless WorkCover can demonstrate that it actually did not come from work.It can be very hard to claim WorkCover for very common diseases such as colds and viral infections because the exposure is so wide in the community generally.In some cases it may be possible to obtain WorkCover benefits because you can show that it is more probable or not that you contracted condition from work. For example if a teacher contracted mumps and could show that one pupil in his or her classroom was suffering from mumps in an infectious stage then a claim may be successful.
- Psychological conditions: See stress claims
If you think work made your condition worse, contact a decent personal injury lawyer ASAP to discuss making a claim.
Am I covered travelling to and from work?
In most cases, WorkCover does not apply when travelling to and from home and work. There can however be some arguments about when you actually reach work. For example if you fall in a car park, WorkCover may cover you if work controls that car park even though you have not arrived at your workstation. If, however the car park is for general public use, you will be considered as still traveling to work.
There are some circumstances where you can still be covered for an injury that happens when traveling between work and home, if work has contributed to that injury. If a maintenance worker fell asleep, for example, on the way home and ran off the road because he or she had been without sleep for 24 hours due a work emergency, they would be covered.
The AMA Guides for impairment assessment
Physical injuries must be assessed in accordance with The American Medical Association Guides For The Evaluation Of Permanent Impairment. Although these Guides are now in their 6th edition, the WorkCover legislation in VIC requires the 4th edition to be used. The Guides have been modified by the legislation which removes the pain chapter, which means that pain does not rate basically. The Guides have been heavily criticised because they provide relatively low impairment assessments for musculoskeletal injuries particularly spinal injuries. It appears that the most common industrial injuries were deliberately lowered when the Guides were being developed in America. Nonetheless, significant impairment scores can be obtained under these Guides from combining all the effects of injury. The Guides are highly complex and can provide markedly fluctuating impairment assessments when the same claimant is assessed by medical practitioners. These fluctuations, in large measure, are due to the discretion that is provided to medical examiners in respect of choosing the appropriate methodology for some assessments, particularly involving limb function.
Can I make a claim for stress?
If your stress condition is caused or aggravated by work, compensation is available.
There is an exception in the WorkCover legislation which is often misused by employers and claims agents to reject work related stress claims.
The exception generally provides that 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 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.
Stress claims are one of the most difficult areas for WorkCover claims. The following issues are set out to provide assistance to persons 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 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. (Click here) NB: Back to question
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.
You can read a WA legal case about a defeated common law damages claim: When has the employer done enough to avoid liability for psychiatric injury claim?
I was injured at work, what should I do?
You have just been injured at work, what now
If you have been injured or made ill at work, you should take the following steps:
- Immediately notify your employer of your injury. It is very important to report your injury as soon as possible but in any event within 30 days to avoid complications in your claim
- Obtain medical treatment for your condition as soon as possible. This means that even if your injury is “not that bad” you still MUST see a doctor. You will also need a workcover certificate from the doctor.
- If you are unfit for work, request a WorkCover certificate from your doctor stating you are unfit for work.
- Give your medical certificate and a completed claim form to your employer who should sign and return the workers copy to you, (Remember to complete the details on the rear of your medical certificate). Claim forms can be obtained from the WorkCover Authority, or a Post Office, or download a claim form here .
Your employer is required to forward the claim to the WorkCover authority within 10 days. The WorkCover claims agent must make a decision to accept or reject your claim within 28 days of the receipt of the claim by your employer. If your employer refuses to accept a claim, it can be lodged on the WorkCover Authority direct at 222 Exhibition Street Melbourne.
Filling in your claim form
In order to claim weekly payments or medical expenses it is necessary to submit a completed ‘ Workers Injury Claim Form ‘.
You should complete the form carefully. Remember that your description of the injury may have some ramifications at a later date if, for example, you were claiming damages due to negligence. It is generally better to complete the form in a matter of fact and unemotional manner. Generally, brief general descriptions of how an injury occurred are better than overly specific descriptions. .
When you have completed the claim form you should attach a WorkCover medical certificate certifying your incapacity. This certificate is generally obtained from your General Practitioner. It is important to remember to complete the declaration on the rear of the certificate which asks about any work you may have performed during the period of the certified incapacity.
It is necessary to have both a certificate and a completed and signed claim form to constitute a ‘ valid claim ‘. Receipts for any medical expenses you have incurred should be attached. You should retain a copy of the claim form for your records.
Generally, a claim form is served on an employer. If you anticipate some difficulty with your employer then it can be wise to serve the claim by registered mail. If you believe that your employer will refuse to accept the claim or, alternatively, if your employer is no longer in business or cannot be located, the claim can be served on the Victorian WorkCover Authority which is located at 222 Exhibition St Melbourne Victoria. If you are sending the claim to WorkCover direct you should include an explanation why this is necessary.
- Your employer is required to forward the claim form within 10 days to the employer’s Claims Administration Agent. This is usually a commercial insurance company. Some large employers are self insured which means they manage their own claims.
- The agent has 28 days from receipt of your claim form by the employer to reject or accept your claim.
- You can contact the Victorian WorkCover Authority on 9641-1555 to find out the name of your Claims Administration Agent. It is possible to ring your agent to find out whether they have received a claim.
- WorkCover may arrange for you to be medically examined by doctors retained by WorkCover. Our blog contains some useful tips for attending these examinations (Look under the “Tag” “IME” to start with)
- WorkCover (or their insurance agent) may contact you to take a statement from you. You are not obliged to do so, but it can improve the chance of acceptance of the claim if you do. It is usually advised you seek advise from your union, or even a lawyer before you provide a statement, especially with “complex” claims such as “stress claims”
- If your claim is rejected, you can refer the matter to the Accident Compensation Conciliation Service for conciliation. Our site contains detailed information about referring the matter to conciliation (See Tag “ACCS” or search for ACCS or Concilliation). To obtain a referral form or information about referring your matter to the Accident Compensation Conciliation Service.
What is a serious injury?
The WorkCover legislation in Victoria defines a serious injury. In order to show that you have a serious injury you must meet either of two complicated tests.
The Quantitative Test: most commonly used test
Under this test, your percentage score of impairment under the American Medical Association Guides (4th edition) to impairment and/or the psychological guides must be 30% or more, which is massive. It is possible to aggregate or combine an impairment rating from a physical injury with an impairment rating for a psychological condition even though the psychological impairment on its own is less than 30%. For example if there is a physical impairment of 20% and a primary (note primary) psychological impairment all 15%, then the combined value of those impairments will be 32%. (Impairment scores are not added but combined using a special formula). These guides are very complex.
The Qualitative Test
This test is an alternative test to the quantitative test. It does not rely on a percentage score but rather relies on an assessment of the effect of the injury on your quality of life. This test is referred to as the narrative test as the WorkCover legislation narrates a series of criteria that must be taken into account. The criteria are any one of the following:
- Serious permanent loss of a body function
- Severe permanent behavioral or mental disturbance
- Permanent serious disfigurement
- Loss of a fetus
As this is a qualitative test, it requires a careful assessment of the full occupational, social, domestic, financial and psychological effects of your injury. In considering this test courts will look at many factors in determining whether an injury may be considered to be serious or not. Each case must be assessed on its own information about the full effects of an injury on the person.
This qualitative test is a very complex test. There is considerable case law about the way in which this test must be applied. The test will only canvass the permanent effects of injury and not the temporary effects of an injury. It is also clear that the physical and psychological effects cannot be combined to establish a serious injury. This means that either the physical effects or the psychological effects in their own right must constitute a serious injury. The psychological effects of an injury must be considered as ‘ severe ‘.
Can I sue for damages?
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 (3) elements that you must establish to obtain common law damages. These elements are:
- You are suffering from a “serious injury“
- Some other person was negligent
- 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, see what is serious injury.
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), 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.
How are damages calculated?
Damages are calculated according to complicated rules, which vary according to the basis on which your injury is certified as a serious injury. There are two components of damages.
Economic loss damages : These are claims for economic loss that generally include the nett current value of lost income and superannuation. These damages are capped by law at $1,076,580.00 but this high level will only apply to injured workers who are relatively young with high pre-injury earnings. Complex laws apply to the calculation of economic loss damages.
Pain and suffering damages: These damages are to compensate an injured person for both past and future pain, suffering and distress caused by the injury. The maximum figure payable in an extreme case is $468,720.00.
How are damages calculated for economic loss
Generally in order to claim damages you must be certified as having sustained a serious injury and must be able to prove negligence on the part of another person.
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 very complex and this information should not be construed as a complete explanation of the way in which damages are calculated. The major principles set out in order to assist potential claimants understand the way in which the courts must approach calculation of damages. Obviously each case is different and this information is not intended to be a substitute for individual legal advice. Set out below are the major elements of the approach that a court must take. These are as follows:
- A court must carefully assess your pre-injury earnings. These will almost always be the most accurate guide to your future earning potential had you not been injured. Where there is a special feature in your circumstances which establishes that you would have (not may have) had significantly increased earnings in the future a court can take this into account.
- 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 the claimant is 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 the claimant’s capacity for work following injury. If a court considers that the claimant does 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 the claimants superannuation fund. If a claimant has not been receiving income, and possibly only receiving WorkCover payments, they will have missed out on their employer’s superannuation contribution. This loss is calculated for the past and the probable loss in the future is calculated. In addition to the lost contributions, it is necessary to calculate the lost income which would have been earned in the claimants superannuation fund had the additional money had been received.
- Having calculated the weekly loss of earnings, this loss will be 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 a claimant.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 the likely retirement date of the claimant had they not been injured. Again, this is an extremely difficult exercise. It involves some guess work. This exercise 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 a claimant’s evidence as to their intention had they 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 the claimant’s likely retirement date would have been. Obviously, insurers will argue strongly that the claimant would have retired early e.g. 55 or 60 had they 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 the claimant has 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 the claimant 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 the claimant was in part to blame for their injury. For example, if a court concludes that the claimant was 20% 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.
Most cases are resolved without going to court, through negotiation or mediation. All the factors listed above are taken into account by the lawyers for each party in those negotiations. However, in private negotiations one further extremely important factor is taken into account. Put simply, this factor is the question of whether the claimant will win or lose the court case. Of course if a claimant loses the case no damages are payable. If negligence is found damages are payable on the basis set out about above.
In some cases it is possible for the claimant’s 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. These factors include the 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.
How are damages calculate for pain and suffering
Claiming damages for pain and suffering is only possible in a common law claim and is a very complex matter. Placing the dollar value on the pain and suffering somebody has experienced is almost an impossible task. Many claimants say that no amount of money can compensate for the pain and suffering experienced. Nonetheless, courts can only award financial compensation and, therefore, have to make an educated ‘ guesstimate ‘ of the value. 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.
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 ‘experience’ of pain and suffering.
In assessing a claimant’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. These include the effect of an injury on the ability to perform domestic, social, sexual, sporting and work activities. Each case must 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. This occurs because the person in the coma, although grossly 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 and 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 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 very complex. 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 claimant’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 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. Pain and suffering damages can also be reduced by the extent to which a person might be considered to have contributed to their injury.
Can I claim a lumpsum for impairment under workcover?
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 AMA medical guides.
Making a claim for permanent impairment requires great care in order to ensure that you receive your maximum entitlement (For information on completing or submitting your own permanent impairment claim, click here). 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 (min. 12 month wait after accident / surgery)
- 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 $396,690 which applies to a whole person impairment of 80% or greater. Where the impairment includes a total loss of the function of a specified body part, (click here for information about Total Loss injuries) it can result in a higher payment which can be added to the residual impairment based rating for other aspects of the injury. (Click here for some examples of impairment payments).
Information for filing your own impairment claim
Impairment – info for filling (your own) impairment claim
The following information is prepared for the assistance of injured workers who wish to undertake their own impairment claim under the WorkCover VIC legislation. Again, be careful going down this path on your own, we highly recommend you seek legal advice!
This information is specifically provided on the basis that it is general information only and does not purport to be specific legal advice in respect of the injured worker’s individual entitlement.
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! We recommend that any injured worker in this category should seek legal advice and not submit a claim themselves.
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.
Most physical injuries are assessed under the American Medical Association Guides for the Evaluation of Permanent Impairment (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 high bloodpressure condition or diabetes. 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, 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“.
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. Unfortunately, a psychological condition that results from physical injury (sometimes called a secondary psychological condition), cannot be included in a psychological assessment. 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.
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 online ‘Claims Manual’ section of the Worksafe web site www.worksafe.vic.gov.au.
- Then Click to Injuries and Claims;
- Then select Online Claims Manual;
- Then Select ‘Chapter 12’ Benefits – Impairment;
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.
- 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 by ringing your lawyer, contacting your Claims Agent or the Victorian WorkCover Authority on 9641 444.
- A photocopy should be sent to your Claims Agent. If you have written medical information (including written scan reports) about your condition it should be included with this. (Do not send any xrays 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 stomac problems which can form part of the impairment claim.The gastric problems must be specifically mentioned on the claim form. If the injury or surgery has resulted in a scar, ‘scarring’ should also be claimed.
- 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 (Impairment Assessor) will assess your level of impairment in accordance with the appropriate scale.
- 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. A form for conciliation can be requested from the Accident Compensation Conciliation Service (ACCS) by telephoning 99401111.
- If you dispute the assessment of your impairment (yes you can and should if you believe the assessment was unfair, many so called independent Impairment Assessors are, well, not that “independent”), 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.Medical Panel opinions are legally binding and can not be appealed!
- 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.
What are Total Loss injuries?
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 circumstances, the payment under the assessment of an injury under the Americans Guides (AMA 4th edition which is currently in use) was well below the equivalent payment for total loss of body part in the prior compensation legislation.
If you visit the worksafe website:
- Then Click to Injuries and Claims;
- Then select Online Claims Manual;
- Then Select ‘Chapter 12’ Benefits – Impairment — Total Loss (No disadvantage)
The concept of ‘total loss’ is often viewed by WorkCover Vic 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 a claimant to a payment of $36,670. The claimant 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.
However, saying that it can be (and is from our injured experiences) extremely difficult to achieve “total loss” injury. For example, recently an injured worker who underwent about a dozen massive failed shoulder surgeries, ended up with documented end-stage oseto-arthritis, an extremely unstable, grossly painful shoulder, locked elbow, gangrene (necrosis) of the whole shoulder joint, significant weakness of the entire forearm, incl fingers; CRPS, nerve and vascular lesions/injuries etc, to the point where the injured worker’s shoulder needs a complicates reverse prosthetic implant, and to the point where the injured worker needs to wear a sling/brace 24/7 and is unable to use his arm, not even for writing a sentence… did NOT get awarded total loss injury. Considering that the injured worker’s shoulder joint is literally rot, and that he is unable to even brush his teeth, we find it very difficult to understand how the law applies to “total loss” injuries, where the limb is not amputated (but may as well be). In another recent case, shared through the blog, an injured worker had 2 digits partially amputated and just under 1/3d of each digit was left in place as “stumps”. Now, as you can imagine, those stumps, in real and practical life, are indeed utterly useless – actually they are even more inconvenient and cumbersome than if they were (cosmetically) amputated – as they tend to “bump” into everything and “catch”. Gripping, holding, grabbing etc is impossible, objects fall through the “stumps”. Yet this injured worker was, sadly, also not awarded a total loss injury, for reasons “extremely bizarre or biased”? You be the judge…
Examples of Impairment Payments
Here are some examples of Impairment (lumpsum) payments
The following are some common examples:
- 15% whole person impairment from a neck injury $28.948
- 17% whole person impairment from a disc injury (10%), gastric ulcer from medication (3%) and surgical scarring (2%) $33,375.00
- 40% whole person impairment from severe a leg injury $103.900
- 11% loss of hearing on the National Acoustic Scale $18.400
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
- 41% whole person impairment arising from a myocardial infarction caused by work $104.890
- 42% whole body impairment from a severe shoulder/arm injury, severe primary psychiatric injury, cardiac failure, CRPS, leg injury: $50.000
- 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
How does workcover investigate my claim
Workcover claim investigation
Will I have to attend medical examinations?
Attending medical examinations is – unfortunately- a necessary part of a WorkCover claim. Failure to attend examinations at “reasonable intervals” may result in the suspension of a claim(which includes ceasing your weekly pay).
Most medical examiners attempt to determine exactly what your injury is on the basis of clinical signs of injury. A -ahum- “minority” of medical examiners retained by WorkCover conduct brief and superficial examinations and provide reports that routinely assert that an injured worker 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. Usually, 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. (Click here for some useful information about “independent” medical assessments)
Will WorkCover ask me to make a statement about my injury?
An injured worker may be asked to provide a statement to WorkSafe or the insurer 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 (insurance). 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 make/give a statement to WorkCover about my injury?
Deciding whether or not to give a statement is a very complex and difficult 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.
This is particularly true for “difficult” claims, such as some “stress claims”(we use a broad term here), or other (physical) injuries which occurred perhaps a little “less straightforward” (i.e no witness, during a break, etc) and where you believe “liability” may be an “issue”. It is best you seek legal advise before you make a written (or verbal and recorded) statement, or at least seek union advice. Sometimes the best is to say less, and keep to the basic facts (without any emotions or details of the incident, which they may be able to hold against you). At other times workcover (insurer) may push you into giving a statement (recorded) for example when you have just woken up from surgery and things are very “blurry”. Beware – and simply tell them you are not (yet) up to it and will get back to them (and seek advice).
If you have suffered a significant / severe injury that is likely to have long-term effects, it can be especially important to provide a statement to WorkCover, but only in the presence of a legal adviser. A legal advisor/rep 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 an injured worker 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 – be very aware of the very dirty tactic used by workcover insurers whose primary goal is to mitigate losses and ultimately to minimise payout by denying liability etc)
Many injured workers wish to make a statement on the basis that they have nothing to hide and that they are keen to tell WorkCover/insurer about how their injury occurred. This position is totally understandable. Refusing outright to give a statement, may result in a claim being rejected as you will be deemed not “credible” or non-cooperative. 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 very 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.
Tips for giving a statement to workcover/insurer
If you decide to provide a statement to an investigator without legal assistance, it is important to kind of follow these simple rules.
- Check to see that investigator is properly authorised by WorkSafe. Sometimes a third-party is involved in causing an injury and their insurance company may seek a statement. Providing a statement in these circumstances will not be in your best interests.
- Do not give a statement if you are in a highly emotional state or while taking medication that affects your memory or state of min, or for example if you just had surgery
- If you are not good in English do not provide a statement without an independent interpreter.
- You should ensure that a draft of statement will be provided to you for you to sign and consider before it is sent to WorkCover. You should be aware that signing a statement is not necessary for it to have an effect. An unsigned statement can be used with the same effect as a signed statement!! This is simply done by calling the investigator to give evidence about the preparation of the unsigned statement.
- The statement provided should be as accurate as possible without going into unnecessary or too much detail. If your statement relates to a stress claim, think very carefully about how the issues are relevant to the claim, before you meet with the investigator. Where possible keep the statements unemotional and matter of fact. Avoid making unnecessary accusations against others. If your claim relates to a stress condition, ensure that you read the information on this site about stress claims in order to ensure that the basis of your claim is properly detailed.
- If you are provided with a draft statement which is not accurate, make written amendments and keep a copy of your corrections for your own records.
- If you provide a statement always request a final copy for your records.
Will WorkCover try to film me?
Surveillance of injured workers under WorkCover does occur more often than you think. However, the true incidence of surveillance is much less than the public perception of its frequency.
The cases where it is most likely to occur are the following types of workcover claims where:
- The injury is not readily demonstrable or “visible”
- Employers (and some insurers!) are strongly resistant or hostile to a claim
- An injured has been in receipt of weekly payments for an extended period – or basically hasn’t “recovered” or returned to work as per “the book”
- Tips: neighbours or disgruntled colleagues, even relatives , former spouses/partners etc have made a report to WorkCover /insurer about “suspicious” activity.
The WorkCover Authority considers that surveillance of an injured worker is a legitimate tool for management of a claim. After all injured workers are presumed guilty until proved innocent, huh!
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 .
The use of surveillance can occur at any time during a claim and is not limited just to long term claims or court cases. However it is almost guaranteed that you will be put under surveillance if and when you commence legal proceedings (i.e. common law damages claim).
In some cases information from surveillance will 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 an injured worker working sawing a tree with a huge power saw, could destroy the claim for compensation for a back injury. These cases of dishonesty are rare. (Injured workers fraud accounts for about 1 to a maximum overestimated 2% of all workcover fraud!)
Most of the difficulties that result from surveillance do not come from the film or information itself but from its effect on an injured worker’s general credibility. It is common, in the course of the case, for a WorkCover medical examiner to ask an injured worker about whether they can undertake various activities. Similarly in some court cases an injured worker can be asked whether they are able to undertake activity such as washing the car. If an injured worker 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 injured worker’s credibility generally, and negatively affect the claim (i.e. damages claim and compensation).
For example, if an injured worker was asked whether or not they wash their car, or mow their lawn 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 injured worker’s denial of undertaking the activity. The injured worker’s credibility will be negatively affected. And they may be accused of malingering and/or exaggerating or, worse… misleading the court!
What should I do if I think I am being filmed?
- Live your life within the terms of your disability/impairmenr/medical (prescribed) restrictions and undertake whatever activities you think and your doctor think are appropriate to your disability/impairment/injury. If you are thinking about undertaking a major activity in the future, tell your doctor about it and ask their advice about its suitability. Chances are that your inquiry will be recorded in the doctor’s notes and can be relied upon by you (as evidence) if necessary. Read between the lines, please!
- The best advise aworkcovervictimsdiary can give you is basically to “abide by your restrictions” 24/7. If you told the medical panel, an IME, your doctor etc that you can not hang up the washing, then DON’T. Should you do so because you feel less pain because you may have taken a double dose of narcotics, or because your partner/spouse/help was unavailable and you just HAD to do it (or sleep in stinking bedsheets), and you were filmed doing it…well… that’s it. You can say what you want, you will be labelled as non-credible and the insurer will have a wonderful time showing their 2 second “gotcha” video to IMEs, the medical panel and your treating doctors, for, ahhh, commenting and opinion
- 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.
Some useful information for attending “independent” medical examinations
Attending the – dreadful – (not so) independent medical examinations
The following are a few suggestions and tips to make “independent” medical examinations a little less stressful:
- When attending a doctor for a physical examination in respect of physical injury, you should remember to take your x-ray and scans to enable the doctor to review these results. Why? It is extremely important that you are aware that the workcover agent (i.e. your case manager/injury adviser) will only send very selective material in support for your injury(ies) to independent medical doctors – read more>>
- If you are not fluent in English ensure that an interpreter will be present at the examination. If you need an interpreter and you have not been told that one will be attending, contact your claims agent and request that the interpreter be arranged.
- Try to arrive well before your examination so that you are in a calm and unflustered state. This will make the examination go more smoothly… and may prevent a Private Investigator shadowing you! (read more about all things surveillance here>>)
- Ensure that your account of your history and of your symptoms is as accurate as possible (get your story straight!). It is extremely important that when you are describing symptoms, that you are clinically precise about what you experience. This also applies to demonstrating the range of motion of your spine, arm, leg etc. It is an understandable tendency that a person being examined wishes to communicate to the examining doctor the significant level of their disability. After all injured workers are hardly believed. Some people do this by being very guarded in examination by restricting their movements during the examination. If the activity starts to cause pain, tell the doctor in a matter-of-fact way. Restricting your range of motion can be counterproductive as the Medical Examiner has many ways crosschecking the range of movement in the course of an examination. If the Medical Examiner comes to the conclusion that the person being examined is ‘unreliable’ (or a Malingerer!) the Examiner will not place any weight on the person’s complaints of symptoms, and will only be influenced by clinical evidence of injury e.g. on x-ray etc.
- Be as accurate as possible about your level of activity. A medical practitioner may, for example, ask about whether you are able to undertake gardening washing the car and other activities. This may be relevant to your capacity to undertake work etc. A denial of undertaking certain activities can adversely affect a claim if it is demonstrated at a later stage that you have been able to undertake that activity… Through, yes, surveillance! This is not because of the performance of the activity but rather because of the effect on the injured worker’s credibility. Conceding that you wash your car but experienced pain afterwards would not have an adverse effect on a claim.
- A medical practitioner who is obtaining a history of injury from you may ask whether you have had any similar injury in the past. This may be relevant in assessing the effects of your work injury or your condition. It is important to appreciate that the WorkCover Authority may obtain access to your medical records to court in later proceedings. Trying to be as accurate as possible with your medical history is also very important. It is important that you put any previous similar injury in to proper perspective. For example, if you are asked about a prior back injury which was minor many years ago, you should disclose it, but put it in its proper perspective i.e. “it only lasted a day or so and that it did not interfere with my work” etc.
- It is possible that WorkCover will arrange for you to be examined by a psychiatrist. (Usually to see if there is a “psychological overlay…!) This type of examination is often more difficult than physical examination as a psychiatrist will need to obtain detailed information about your background, education and upbringing. This can sometimes be very distressing, but it is often unavoidable when the psychiatrist has been asked to comment on whether your condition has come from work or from other causes. When attending this type examination you should be prepared to encounter some of these questions, which may not seem relevant to you. It is necessary, to a degree, for a psychiatrist to ask these questions. There is, of course, a limit to what is relevant and if you believe that the questioning is not appropriate, you should discuss this with the doctor.
An Examiner retained by the WorkCover Authority is required to conduct their examinations on a proper professional basis. If you believe that the Examiner has failed to meet the standard you can report the matter to the WorkCover Authority. If the examination involved serious unprofessional conduct, the matter could also be reported to the Medical Board of Victoria!!!
There are heaps more useful tips and tricks and articles about independent examinations on our site, and how you can best “prepare” and “protect” yourself. The best way to find them is to look up the tag “IME“.
What medical treatment is covered under workcover?
What medical treatment is paid under WorkCover?
- You are entitled to receive medical treatment from the medical practitioner of your choice. You are not obliged to obtain treatment from your employer’s doctor. Your employer’s doctor can of course often provide good treatment particularly in emergencies, but some workers choose to obtain treatment from their own doctors. For major procedures, prior approval from WorkCover is necessary, unless the treatment is urgent.
- All routine medical treatment for your injury is paid by WorkCover. This includes the costs of hospitals, specialists, scans, physiotherapists, chiropractors, chemists etc. If surgery is also required because of your injury, its cost is covered.
- WorkCover will also cover the costs of home help, including gardening, as well as taxi transport, provided your treating doctor supports the need for it and the reason why you need it.
- WorkCover also covers the cost of gymnasium or swimming if approved by your doctor and if it is necessary to improve or maintain your condition.
Medical treatment costs remain payable after you return to work, or after your weekly payments cease if the treatment is necessary to ensure that your health or your ability to undertake activities of daily living does not deteriorate.
For a list of all medical and like services, please head on over to the online claims manual
WorkCover has terminated my medical treatment, what should I do?
It is, unfortunately, quite common for WorkCover to terminate or reject medical treatment claims. In fact, WorkCover very closely monitors all medical treatment expenses. The most common expenses that are rejected or terminated relate to long-term physiotherapy or psychological counselling expenses where WorkCover considers that they are not resulting in any therapeutic improvement in your condition.
The most common reasons for a rejection or termination of medical expenses are as follows:
- WorkCover medical advisers have indicated to WorkCover that the treatment is unnecessary.
- WorkCover considers the treatment is no longer is effective or can be replaced by self managed home exercises.
- Weekly payments have ceased more than 52 weeks ago
The WorkCover legislation contains a specific provision which terminates an entitlement to medical and like expenses 52 weeks after the cessation of weekly payments of compensation. There is, however, a very important and wide exception to this provision.
This exception provides that medical treatment costs will not cease if a claimant:
- Could not remain at work if the medical services were not provided;
- Surgery is required; or
- does not significantly deteriorate’.
This exception means, in effect, that if the treatment is important, it remains payable under the WorkCover legislation. The ability to claim under this provision continues, even if WorkCover have previously sent a notice terminating medical entitlements. If you require major treatment and your entitlements have previously been terminated, you should write to your WorkCover claims agent requesting approval for the treatment. If your request is rejected or not actioned, you should refer the matter to the Accident Compensation Conciliation Service.
If WorkCover advise you that they intend to terminate your medical treatment expenses, you should refer the dispute to the Accident Compensation Conciliation Service for resolution of the dispute. One of the most common methods of resolving this type of dispute is to refer the issue to the Medical Panel. When a matter is referred to the Medical Panel, it is often important to be in a position to demonstrate that in the absence of treatment, your condition will worsen. It can sometimes be useful to have a discussion with your treating doctor about whether you should have a brief break in your treatment, particularly physiotherapy treatment to determine the effect of its termination on you.
If your treatment expenses are not restored through conciliation or through a decision of the Medical Panel, it does not mean that your entitlements are finalised for good. If you can demonstrate at a later time that your condition has become worse, making the treatment essential, it is possible to reapply for medical expenses.
What weekly payments will I receive?
Several factors affect and determine the weekly payments you will receive from workcover. These are:
- The amount of your pre-injury earnings
- The level of your incapacity
- The length of time you have received payments
- Whether or not your employer has offered suitable work
Your pre-injury earnings will be calculated under a strict formula contained in the WorkCover legislation.
This is normally based on the average of your earnings with the employer over the 12 months prior to your injury.
In exceptional cases, a shorter period can be used. Commissions, piecework rates and some allowances can also be included. Regular overtime can also be included in the calculation but only for the first 26 weeks of payments.
To continue to receive weekly payments you must continue to supply your employer with medical certificates every 28 days.(unless your workcover insurer has allowed you specifically to provide 3 monthly certificates, i.e. in cases of very severe injuries). Always remember to complete the declaration on the back of the certificate, otherwise you will not get paid and the certifiate will be returned to you
Weekly payment rates in Victoria
** note weekly pay rates have sightly increased in the legislation review of 2010 (so for those injured after 1July 2010), current rates of workers compensation benefits are listed on WorkSafe Victoria’s website **
Also refer to the Vic workcover legislation
For the first 13 weeks
During this period, you will receive 95% of your pre-injury average weekly earnings if you are unable to work.You may be entitled to an additional payment (called make-up pay) under your industrial award or work contract. If you are able to work in this period your weekly payment may be reduced because of your earnings or in rare cases by the amount you are notionally able to earn in suitable employment. The payments are currently capped at a maximum amount of $1,250.00.
After 13 weeks
If you are unable to work at all you will continue to receive weekly payments, but at a lower rate of 75% (*for injuries after 1 July 80%) of your pre-injury earnings. If you are entitled to “make up pay” for a longer period than 13 weeks this may be increased to offset the reduction in your payments. If you are capable of undertaking some work, but are not working you will receive a payment based on 75% (*80%) of your pre injury earnings. If you are working in this period, your earnings will reduce your payment. The maximum part payment you can receive if you are working is $1,250.00 less 75% (*80%) of your current weekly earnings.
Overtime and first 26 weeks of weekly payments
If you were paid for overtime prior to the injury and were likely to have continued to do overtime during the 26 week period after the injury, you are entitled to receive additional pay in the first 26 weeks. This is calculated by dividing the total of the amounts paid to you for overtime or as a shift allowance (as the case may be), during the 12 month period prior to the injury (or lesser period if you have not worked a full 12 months prior to the injury), by the number of weeks in the same period, which you in fact worked or were on annual, sick or other paid leave.
Partial Payment on Return to Work Before 130 Weeks
If you return to some work but remain partially incapacitated, you will receive a partial payment which is calculated on a very complicated basis. The formula upon which this past payment is based, is as follows:
- 75% (*80%)of your post injury wage is calculated (Your earnings amount)
- This earnings amount is subtracted from 75% (*)of your pre-injury earnings (this was the basis of your later weekly payments under strict WorkCover provisions which exclude overtime etc after 26 weeks)
- If your pre-injury earnings calculated above exceed $1,250.00 then for this purpose your pre injury earnings are capped at this amount.
- Your payment is the difference between 75% (*)of your earnings amount and 75%(*) of your pre-injury earnings amount.
Example of how weekly payments are calculated
Truckie is a truck driver whose pre-injury earnings under the WorkCover formula were $950. 75% of this equals $712. Joel has returned to work earning $600 a week as a taxi driver. 75% of $600 is $450.
The partial WorkCover entitlement is therefore $712 – $450. The partial WorkCover payment is therefore $262 per week. Joel’s total income is $862.00 per week.
(* again for injuries after 1 July 2010 this is 80%)
After 130 weeks (2 ½ Years) (For injuries prior to 1 January 2005 this occurs at 104 weeks -2 Years)
Long-term weekly payments are only payable if you are assessed as having “no work capacity” which is likely to “continue indefinitely”. This test sounds very severe, but the law requires the WorkCover Authority to take into account your age, your employment skills and the state of the employment market in determining if you meet the test. If you meet this test, you will continue to receive weekly payments based on 75% (*) of your pre-injury earnings.
If you are assessed as having a capacity for employment, your weekly payments will cease unless you are:
- Actually in employment for more than 15 hours a week, and
- Earning more than $146.00 per week, and
- Incapable of undertaking more work.
If you come within this category, you will receive a partial payment on top of your earnings. You will be entitled to receive the lesser of 75% (*) of your pre-injury earnings less 75%(*) of your current weekly earnings or $1,250.00 less 75% of your current weekly earnings.
Long Term Weekly Payments
Even if you have been classified as having ‘no current work capacity indefinitely’, WorkCover will continually review your entitlement to assess whether you still meet the eligibility for those payments.
If you are accepted as having ‘no current work capacity indefinitely’ into the future, you will continue to receive your payments of compensation until ‘the normal retirement date’ in your industry or age 65, whichever occurs first. Because it is almost impossible to establish the existence of any normal retirement date in a particular industry, it is usual for these weekly payments to be made until age 65.
Where somebody is injured within 130 weeks of the ‘ normal retirement date ‘ (or age 65), weekly payments still continue for the 130 week period. If someone is injured after age 65, they also continue for that period.
A very frequently asked questions about weekly pay
→>My weekly payment rate does not seem correct, what should I do?
Calculating your correct weekly payment rate can be quite complex. The definition of the two components “Pre Injury Average Weekly Earnings” (PIAWE) and the “Normal Number of Hours” take up many pages of the WorkCover legislation.
It is common for a rate to have been incorrectly calculated.
In order to help you determine your correct rate, we recommend the following;
- Try to work out what stage of the weekly payment cycle you are in. Payments are reduced the longer you are in receipt of those payments and overtime is not included after the first 26 weeks. A change in your weekly payment rate could be due to a number of factors but you should always receive written advice about a change. Your weekly payment rate is calculated at the time of your injury based on your past earnings. It is indexed once a year on 1 July. This web site is a good starting point to understand the changes in weekly payment rates that can occur.
- If your payments are being made through your employer, contact your pay office and request details on how you are to be paid and the reason for any variation that may have occurred in your payments.
- If your query is not answered satisfactorily, contact your WorkCover claims agent and ask them to advise you how your weekly payments have been calculated. Specifically ask them to then advise you of the calculation of your PIAWE. Request that they send you a letter setting out the basis of their calculations.
- If you believe the calculation is incorrect, contact your claims agent and request an adjustment in your weekly payment. This is best done in writing – keep a copy of your letter.
- If your request is denied or ignored, you should refer the matter to the Accident Compensation Conciliation Service.
How are disputes with workcover resolved
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. It is necessary to lodge an application for conciliation.
Generally, a 60-day time limit applies to refer a matter to the Conciliation Service. A form for the referral can be obtained here
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 (see further below for more info). 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.
You should contact your lawyer for advice 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.
How to lodge a request for conciliation
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, which aworkcovervictimsdiary highly recommend, 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.
It may take several weeks for your case to be heard at Conciliation – depending on the case load of the ACCS.
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. 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 legally binding on the parties and a court is generally required to follow its decision. Therefore great care and consideration is needed in determining whether to refer a matter to a Medical Panel. If a claim for compensation is rejected or payments are terminated, an injured worker 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 understand 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 and consideration 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. Best is to seek 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.
You may also want to read our articles posted about Medical Panels; such as:
- Medical Panel or a judge?
- Beware that Medical Panel opinions & decisions are legally binding
- WorkCover terminates payments – conciliation or medical panel?
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 basically involves a full medical examination of the injured worker ( to the extent relevant for a claim – body area).
The Panel will be made up of a number of Medical Practitioners which will usually reflect expertise in the different areas of injury that an injured worker has specified. However, something that few injured workers are aware of, is that many IME’s routinely “rotate” through the medical panel – but, if a “bad” IME has to assess an injured worker in the presence of several other doctors, chances are that s/he will have to be a little more careful and… honest!
Medical Panel doctors display quite a high level of independence. Their medical examinations tend to be very careful, and professional . Medical Panels are also very sensitive to issues relating to gender and cultural backgrounds. Indeed many injured workers 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 an injured worker, 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. (Again seek legal advice).
It is only natural for an injured worker to think that they have to argue their case when they attend the panel. All medical practitioners have various and pretty much fool-proof methods for checking the accuracy and consistency of the injured worker’s presentation at the examination.
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 injured worker 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.
Appeals against the decision of a Medical Panel are only possible on extremely limited grounds. An appeal against the decision of a Medical Panel must be made to a judge of the Supreme Court of Victoria.
The time limits are extremely technical as an appeal can be launched either under the provisions of the Administrative Law Act or, alternatively, under the specific orders of the Supreme Court. Under the Administrative Law Act, the period can be as short as 28 days. (This period can be marginally extended more detailed reasons requested from the Panel and those reasons in fact supplied).
Under the orders of the Supreme Court the normal period for appeal is 60 days from the date of the decision. The Supreme Court, however, has a general discretion to extend this period where it is in the interests of justice.
What happens if I cannot return to my old (= pre-injury) job?
Returning to work is one of the most difficult areas you will have to deal with if 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 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.
If you are unhappy about any decision of your employer about a return to work, it is possible for you to refer the dispute to the Accident Compensation Conciliation Service.
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.
Does my employer have to hold my job open?
The 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.
Can I be sacked while on WorkCover?
There is no 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 (see below).
How does WorkCover affect my superannuation?
Does my employer have to continue to contribute to my superannuation fund whilst I am off work?
There is no obligation on your employer to contribute to your superannuation fund whilst you are absent from work on WorkCover. The obligation to contribute to superannuation under the Commonwealth legislation only applies to wages and salary that you receive whilst you are actually working. Under some industrial agreements, awards, workplace agreements or contracts, some employers are obliged to continue superannuation contributions for a limited period whilst a claimant is on WorkCover, for example, 12 months.
Can I obtain a superannuation pension, whilst I am receiving WorkCover weekly benefits?
You are entitled to draw on superannuation by way of pension, but your WorkCover weekly payment will be reduced on a dollar for dollar basis. This effect only applies if your superannuation pension relates the superannuation scheme for the employment in which you were injured. This will effectively mean that your superannuation pension is of little or no value to you as your weekly WorkCover payment will be reduced by the amount you receive. For this reason it is often better not to draw on your superannuation pension until your WorkCover weekly benefits cease.
Can I obtain a superannuation lump sum, whilst I am receiving WorkCover?
Drawing on your superannuation whilst you are receiving WorkCover, can affect your entitlement to WorkCover weekly payments. This effect only applies if your superannuation lump sum relates to the superannuation scheme for the employment in which you were injured. If you receive a superannuation lump sum and do not roll this over into an approved fund then your weekly payments of compensation will be suspended for a fixed period of time. The fixed period of time is calculated by dividing your normal wage into the lump sum. When this period has expired you may be entitled to return to weekly WorkCover benefits. It is therefore better to defer drawing on your superannuation entitlements whilst you continue to receive WorkCover benefits.
Under some circumstances it is possible to draw on your own contributions for an approved capital purpose such as to discharge your mortgage without affecting your weekly payments. If you are thinking of doing this it is important to obtain advice before doing so.
Can I claim under my income protection or superannuation disability policy whilst on WorkCover?
Normally, an income protection policy is a private contractual arrangement between you and an insurance company to pay lost income as a result of injury or illness. This type of private insurance arrangement can sometimes be part of your superannuation funds benefits, an employment benefit or part of a loan agreement you might have with the bank or mortgage provider.
These are independent insurance arrangements that usually do not have any impact on weekly payments of compensation from WorkCover. Each policy has its own terms and conditions.
It is therefore important, however, to check the terms of your policy in order to find out whether or not:
- Coverage of incapacity from a work injury is excluded under the policy. This is usually not the case.
- Benefits under the policy are payable if you receive a WorkCover weekly payment.
- Benefits can be reduced by any WorkCover weekly payment.
If you have an income protection policy you should read the terms and conditions of the policy and then contact the insurer to submit a claim. If a claim is rejected, various options are available such as commencing legal proceedings all referring the rejection of a claim to the insurance ombudsman. If you are uncertain about your entitlements or have had a claim for income protection rejected, contact Workforce Legal for assistance on 1800 134 204.
Is there any way I can claim for my lost superannuation benefits because of my injury?
The only way in which lost superannuation benefits can be claimed is through a claim for Common Law damages based on the negligence of another party. If you are able to pursue damages (and you are authorised to obtain economic loss damages) then you can include lost superannuation as part of your claim for damages. In the circumstances, lost past contributions would be calculated, as would your likely lost future contributions. The lost income that these contributions would have earned within your fund will also be calculated and claimed.
Does my weekly payment include my employer’s contribution to my superannuation fund?
Unfortunately, your WorkCover weekly payment will not include your 9% superannuation guarantee levy contribution which is made on your behalf by your employer. Where you have a salary sacrifice arrangement for super contributions over and above your standard contribution, the extra amount can form part of your pre injury average weekly earnings on which your weekly payment under WorkCover is based.