WorkCover – Victoria
WorkCover is a comprehensive insurance policy available to all Victorian employees (excluding those covered by Comcare). It is a no-fault insurance policy which means that in order for a WorkCover claim to be accepted, it is not necessary to show that the employer did anything wrong.
What must be shown is:
There is an injury; and
Employment caused or significantly exacerbated the injury; and
If the injury is a psychological injury, that reasonable management action has not been the whole or predominate cause of the mental injury.
Who can make a WorkCover claim?
Full-time employees
Part-time employees
Casual employees
Some types of Contractors
Students on authorised work placements
How do you make a WorkCover claim?
You must first obtain a Certificate of Capacity from your doctor. The first Certificate is for 14 days and thereafter the Certificate is for 28 days. The certificate acts like an invoice to your employer to be paid weekly payments. It is also an indication to your employer as to whether you have a capacity for work. If you have a capacity for work but restrictions are placed on the exercise of that capacity, your doctor uses the Certificate of Capacity to communicate this to your employer.
You then need to fill out a claim form. You can access a WorkCover claim form online. If your injury occurred over a period of time, it is important that you write this on your claim form and do not simply record the injury date as the last date worked. The WorkCover claim form sets up the basis of the injury and what the insurer will accept liability for. Prior to submitting a WorkCover claim form we recommend you contact our office for advice. We will not charge you for that advice.
The completed WorkCover claim, along with the Certificate of Capacity, then needs to be provided to your employer. The employer must provide it to the WorkCover insurer (within 10 days for physical injuries and 3 days for psychological injuries). Once the insurer has the WorkCover claim form and the Certificate of Capacity, the claim will then be determined. Generally, a determination must be made within 28 days. During the determination period it is likely that the WorkCover insurer will arrange for you to be medically examined. You must attend that medical appointment. We recommend obtaining advice from our office prior to attending the medical appointment.
In the time between the making of a WorkCover claim and its determination, an employee is entitled to be paid sick leave and that sick leave will be recredited upon the acceptance of the WorkCover claim. If the employee’s sick leave is exhausted then the employer must, upon request, pay the employee’s accrued leave entitlements. Accrued leave entitlements will similarly be recredited upon acceptance of the claim, if the employee chooses.
If your claim is for psychological injury, whether in whole or in part, reasonable medical treatment will be paid by the WorkCover insurer during the determination process. These are provisional payments payable by the WorkCover insurer for psychological injuries only. They are not payable for physical injuries. Ultimately, if your WorkCover claim is not accepted then the provisional medical expenses paid by the WorkCover insurer are not refundable.
What if my WorkCover claim is not accepted or WorkCover makes a decision I disagree with?
Prior to Court proceedings being issued the matter must be referred to the Accident Compensation Conciliation Service (ACCS). This is a truly independent service designed to deal with and resolve disputes involving workers, insurer’s and/or employers. You generally only have 60 days from the date of a disputed decision to refer a matter to conciliation.
If you disagree with a decision made by an insurer we will advise of your prospects of success in challenging it and manage the referral process to the ACCS for you.
What happens when my WorkCover claim is accepted?
You are entitled to three benefits:
1. Weekly payments
2. Medical and like expenses
3. A lump sum permanent impairment payment.
Additionally, and quite separate to the WorkCover claim, you may also be entitled to make a common law damages claim. This is a claim based in negligence which can compensate you for your pain and suffering and economic loss. A common law damages payment is payable in addition to your WorkCover benefits.
A common law damages claim is a claim against your employer and/or a third party and the payment is significant. The claim is however fault based which means that in order to receive a payment, it must be established that the injury was or should have reasonably been foreseeable and could have been prevented. The failure to have taken reasonable steps to prevent the injury is the negligence.
You only have six years from the date of injury to make a common law damages claim. You should seek legal advice early to ensure that you protect your common law interest.
Weekly payments
For the first 13 weeks of incapacity, weekly payments are paid at 95% of your ordinary income and thereafter, they are payable at 80% capped at a statutory maximum.
Generally, weekly payments are calculated based on the ordinary earnings for the 52 weeks prior to injury. However, this is not always the case. For example, if there has been a promotion you may be entitled to have your weekly payments calculated based on the new increased wage and not the average of what you earned in the 12 months prior to injury.
In the first 52 weeks of payments, weekly payments include shift allowance and overtime however after 52 weeks the value of these earnings are excluded from your weekly payments. Superannuation is payable only after 52 weeks of weekly payments have been paid and not before. If you are concerned about the calculation of your weekly payments, you should contact our office for advice. We will not charge you for this advice.
Weekly payments will be payable for the first 130 weeks of incapacity so long as you have an incapacity/restriction for the performance of your ordinary duties. After 130 weeks however, they are only payable if you have a permanent and total incapacity for all suitable employment. Whether you have a capacity for suitable employment is determined based on your medical capacity, your education and work experience and your ability to undertake retraining. The WorkCover insurer must give you 3 months’ notice of termination when making the decision to terminate weekly payments at 130 weeks. If you have been given this notice of termination please contact our office. We will not charge you for our advice.
If you have received weekly payments for 130 weeks and then returned to work but you are earning less than 80% of your pre-injury earnings, you may be eligible to receive a top-up weekly payment. Please contact our office for further advice. We will not charge you for that advice.
Medical and like expenses
Medical and like expenses will be payable if reasonable and appropriate. When determining if a treatment or service is reasonable and appropriate the focus is on whether there will be a functional improvement, as a result of the treatment or service, in your performance of activities of daily life or your capacity to work. Generally, a treatment or service recommended by your GP or your specialist will be reasonable and appropriate and should be funded by the WorkCover insurer.
Medical expenses include medical consultations, including second opinions from specialists, allied health and medication. Other services which may be payable include but are not limited to, retraining, swim and gymnasium membership, modifications to household equipment and motor vehicles and home help.
You should ensure that prior to incurring a medical expense you have sought approval from the WorkCover insurer. Approval should be sought in written form by way of email so that there is a record of your request. If approval is then not given, please contact our office and we can assist you.
Lump Sum Permanent Impairment Claim
A lump sum permanent impairment payment is payable in addition to weekly payments and medical and like expenses. The receipt of a lump sum permanent impairment payment does not interfere with the payment of your weekly payments or medical and like expense. It is an additional stand alone payment. It is a payment available to everyone with an accepted WorkCover claim.
To make a claim for permanent impairment payment your injury must first be stable. Whether your injury is stable is a medical determination. Generally, an injury will be considered stable when it is expected that with or without treatment, there will not be significant improvement or deterioration in your injury.
Once your injury is stable a claim can be made and you will then be assessed by a medical practitioner appointed by the WorkCover insurer to determine your level of whole person impairment. If you have a physical injury, the determination of your level of whole person impairment is based on medical assessment guides called the American Medical Association’s Guide to the Evaluation of Impairment 4th edition. If you have a psychiatric injury, the assessment of your whole level of impairment is based of medical assessment guides called the Guide for the Evaluation of Psychiatric Impairment for Clinicians.
If you have a physical injury you must rate either 5% for musculoskeletal injuries, or 10% for other physical injuries in order to receive compensation. If you have a psychiatric injury you must be determined to have at least an impairment of 30% to receive compensation.
Once the insurer has assessed your level of impairment it will advise you in writing and you can then make a decision as to whether to accept the assessment or challenge it. You should not make an impairment claim without the assistance of a lawyer as it can be a very difficult task to work out if the assessment is correct. At Rubicon Compensation lawyers we will lodge the claim for you along with all supporting medical material, prepare you for the medical examination and then advise you as to the ultimate assessment and whether it should be accepted or not.
There is no time limit on when you can make a lump sum permanent impairment claim. Generally an impairment claim is made prior to the making of a common law damages claim.
Common Law Damages Claim
You cannot make a common law damages claim until at least 18 months has elapsed from the date of injury.
There are two elements to a common law damages claim:
You must have a Serious Injury certificate; and
It must be established that your injury was caused by the negligence of someone other than you.
Serious Injury Certificate
There are two ways that you can establish serious injury. The first is that you rate 30% or more in the lodgement of a permanent impairment claim which is payable on your WorkCover insurance. If you rate 30% or more then you are deemed to have a serious injury certificate for pain and suffering and economic loss. Alternatively, you can obtain a serious injury certificate by satisfying the narrative test. This is a complex legal test which essentially looks at the permanent impact of your injury on your life. If the impact is serious (physical injuries) / severe (psychiatric Injuries) when considered against the range of injuries, then you will be granted a serious injury certificate. A serious injury certificate may give you permission to sue for pain and suffering or for pain and suffering and economic loss.
In order to obtain a serious injury certificate, you must make a formal application lodged by a lawyer. The application is then determined by solicitors appointed by WorkSafe. The application may be granted or it may be that Court proceedings need to be issued and then a Judge of the County Court of Victoria will determine if you have suffered a serious injury.
Negligence
Once a serious injury certificate has been obtained a compulsory negotiation process exists which requires offers of settlement to be made. If claims are not able to be settled during this negotiation phase, then Court proceedings must be issued. At Court it must be established that negligence was the cause of your injury. Arguments will then be made as to the compensation that you should be paid.
At Rubicon Compensation lawyers we pride ourselves on being fierce litigators but not at the expense of your interests. We understand that a common law damages claim is an opportunity to provide a viable financial future for you and we will not compromise your financial future. We are experts in our field and we will give you clear and realistic assessments of your prospects of success and likely compensation. It is preferable that compensation is obtained without having to go to Court, but we will not shy away from litigating if you are not being offered the right money.
Time Limits
You only have six years to make a common law damages claim and after that six years has passed your common law rights expire. In limited circumstances you can make a common law damages claim outside the six year time period. Please make sure that you get common law advice early.