An injured person will often ask their lawyer, “how much money am I going to receive?”. Good Workcover lawyers should be able to provide a qualified response to this question reasonably early in your matter, though this is always subject to change as your injuries and matter progress.
Our role as your lawyer is to support you through a difficult time of your life, to listen to you, and to achieve the best outcome we can based upon your instructions, and what is realistic in accordance with the Workcover scheme.
A Workcover Lawyers role is to maximise the payout to you, tailored to your personal circumstances. It is important to find a lawyer that listens to you and will speak to you at length about the consequences upon you and your life in order to maximise a payout for pain and suffering damages.
How are Workcover payouts calculated?
Damages payouts in Workcover matters can be very complicated. They are worked out by assessing a great deal of factors in any given case and are generally categorised by the following:
The following is a short summary of how a good lawyer will go about assessing such. Usually, lawyers look at a few factors, such as the overall effects of an injury on a person, as well as what medical treatment a person has had to go through, and the lasting consequences that person has to show for the injuries.
We have included three detailed examples to help you understand more how these damages payouts are calculated.
Note: We have changed the names of examples below for privacy reasons.
Pain and Suffering Damages
In Workcover matters, anybody who is entitled to a payout will claim for their “pain and suffering”.
Pain and suffering damages are not only for your literal pain and suffering as a result of injury, but also for all the other ways that injuries affect you.
This includes a very wide range of things for any individual, such as not being able to enjoy your favourite hobbies or sports, having your sleep or mobility affected, or even simply not being able to look after your family in the normal way.
There is no real guide to how to calculate pain and suffering damages. All people are different, and the same injuries might have very different effects on two separate people.
EXAMPLE ONE - Pain and Suffering Damages
Sarah (60 – Aged care worker)
Suffered an injury to her lower back over the course of her employment
Sarah was a 60 year old aged care worker who suffered injury to her lower back in the course of her employment.
Sarah continued to work for some time after her injury with worsening symptoms and ended up having lumbar fusion surgery. Unfortunately, Sarah did not have a good result from this surgery and was never able to return to work. Sarah experienced daily pain in her back and into her leg. Sarah was restricted in her ability to undertake normal tasks in her daily life.
Sarah received a payout for her pain and suffering of $275,000.
PAYOUT AMOUNT
$275,000
EXAMPLE TWO - Pain and Suffering Damages
Michael (52 – Manual worker)
Suffered a shoulder injury while making car trailers
Michael was a 52 year old manual worker who suffered a shoulder injury in his work making car trailers.
Michael underwent a number of procedures to his shoulder that improved his pain and function to a certain extent, but Michael continued to have ongoing pain and restricted range of movement. Michael attempted to return to work in a full-time role with restricted duties but was not able to maintain this full-time work.
Michael was restricted in his ability to care for his home and keep up with his older children.
Michael got a payout of $175,000 for his pain and suffering.
PAYOUT AMOUNT
$175,000
EXAMPLE THREE - Pain and Suffering Damages
Trevor (43 – Truck driver)
Suffered a lower back injury over the course of his employment
Trevor was a 43-year-old truck driver who suffered injury to his lower back over the course of his employment. The injury arose as a result of a truck with poor suspension repeatedly driving over rough and uneven surfaces.
Trevor attempted to return to work but this was not successful. He underwent a double laminectomy. Trevor has a young family and was not able to engage with his family in the way he was able to prior to his injury. Trevor was unable to enjoy playing football the way he had prior to injury but was still able to enjoy a round of golf with his friends on occasion.
At the time of the resolution of his case, Trevor had been off work for 4 years and in receipt of weekly payments.
Trevor received a payout of $325,000 for his pain and suffering.
PAYOUT AMOUNT
$325,000
Economic Loss Damages
In a Workcover case, you will only be entitled to claim for past and future loss of earnings (Economic loss damages) if you have been granted a serious injury certificate for both pain and suffering and loss of earning capacity.
A loss of earning capacity certificate will only be granted if the Victorian Workcover Authority or a Court are satisfied that you have lost 40% of your earning capacity as a result of the work injury.
Damages for loss of earnings are claimed for your past loss as well as your future loss that will be incurred as a result of you being incapacitated to work.
1. Past Economic Loss
Under the Workcover scheme, there are significant entitlements to weekly payments of compensation.
However, since those payments are not paid at a worker’s regular rate of pay, an amount for the ‘gap’ between regular earnings and Workcover payments can be claimed.
Often past economic loss payments are not large, as the bulk of such payments have already been paid by Workcover due to an injured person’s entitlement to weekly payments in accordance with law.
EXAMPLE ONE - Past Economic Loss
Sarah (60)
Suffered an injury to her lower back over the course of her employment
Sarah was working part-time at the time of her injury working 25 hours per week. Sarah was earning $550 each week after tax.
Sarah stayed on Workcover payments from the date of her injury until her case resolved and she was therefore able to claim the difference between what she would have earned and her Workcover payments which were paid at a rate of $440 per week.
PAYOUT AMOUNT
156 weeks x ($550 – $440) = $17,160 past economic loss
EXAMPLE TWO - Past Economic Loss
Michael (52)
Suffered a shoulder injury while making car trailers
Michael had been able to return to work, in a more restricted role, working permanent part-time for 30 hours per week.
As indicated above, you are only able to recover loss of earning damages if you can establish that you have lost 40% of your earning capacity.
Michael had been working full-time at the time of his injury. As he was able to work 30 hours per week, he had only lost just under 30% of his earning capacity. Michael was unable to recover his past loss of earnings.
PAYOUT AMOUNT
No past economic loss damages awarded
EXAMPLE THREE - Past Economic Loss
Trevor (43)
Suffered a lower back injury over the course of his employment
Trevor made attempts to return to work that were not successful.
Trevor had been working full-time at the time of his injury earning $1,600 per week after tax.
At the time of resolution of his case, Trevor had been off work for 4 years and in receipt of weekly payments.
Trevor was able to claim the difference between what he would have earned ($1,600) and the Workcover payments he received, which were paid at a rate of $1,300 per week.
PAYOUT AMOUNT
208 weeks x ($1,600 – $1,300) = $62,400 past economic loss
2. Future Economic Loss
Future economic loss claims can often be quite complicated. It can involve hypothesizing what the future might have looked like and how a person may recover in the future. Catastrophically injured persons are often conceded to have a “total loss” of earning capacity.
Most people, however, are able to work in some capacity, either in their pre-injury role or another job that suits their skills and experience.
Consideration must be given to what a Court may accept as a likely scenario in the future about a person’s capacity to work.
The type of things the Court will look at are:
- Can the person work? If so, how much can they work?
- What are they able to earn now as opposed to before their injury?
- When would the person have retired and are there any other conditions which might have affected their retirement age?
Damages for future economic loss are calculated by looking at the weekly loss, multiplying this using an actuarial figure as to what each dollar is worth over time, and then taking away a percentage, typically 15%, for unforeseen events that might occur in the future to stop someone working. This reduction is known as the “vicissitudes of life”.
Superannuation is also usually factored in, at the compulsory rate of 11.5%.
Schedule a Free Call
Arnold Dallas McPherson offers a free initial consultation and provide services on a No Win, No Fee basis. We have a lot of experience in Workcover claims and advising clients realistically regarding their claims for economic loss.
EXAMPLE ONE - Future Economic Loss
Sarah (60)
Suffered an injury to her lower back over the course of her employment
Sarah instructed that she was intending on continuing to work full-time until the age of 67 years.
Sarah was unable to work at all as a result of her injury and her claim for future loss of earnings was put on that basis.
Weekly net earnings if not injured x Relevant multiplier between ages 60 and 67 years
$550 x 299.9 = $164,945
Less vicissitudes:
$164,945 x 0.85 = $140,203.25
Plus superannuation:
$140,203.25. x 1.095 = $153,522.56
Workcover argued that the reduction for vicissitudes in the matter should be higher than 15% given the risk that Sarah may not have worked until age 67 as a result of other health conditions.
PAYOUT AMOUNT
Sarah received a payout of $125,000 for her future economic loss
EXAMPLE TWO - Future Economic Loss
Michael (52)
Suffered a shoulder injury while making car trailers
As indicated above, you are only able to recover loss of earning damages if you can establish that you have lost 40% of your earning capacity.
Michael had been working full-time at the time of his injury. As he was able to work 30 hours per week, he had only lost just under 30% of his earning capacity. Michael was unable to recover any future loss of earnings.
PAYOUT AMOUNT
No future economic loss damages awarded
EXAMPLE THREE - Future Economic Loss
Trevor (43)
Suffered a lower back injury over the course of his employment
Trevor had made attempts to return to work as a truck driver that were not successful.
At the time of resolution of this case, Trevor was being certified as unfit for all duties and was in receipt of Workcover payments.
Given that Trevor was in his mid-40s at the time his case resolved, there were arguments that he may be able to return to some work in the future.
Weekly net earnings if not injured x Relevant multiplier between ages 43 and 65 years
$1,600 x 709.8 = $1,135,680
Less vicissitudes:
$1,135,680$ x 0.85 = $965,328.
Plus superannuation
$965,328. x 1.095 = $1,057,034.16
Workcover was not convinced that Trevor would never work in any capacity again and reduced their offer on this basis.
PAYOUT AMOUNT
Trevor received a payout of $750,000 for his future loss of earnings
Total Damages Paid
EXAMPLE ONE - Total Damages Paid
Sarah (60)
Suffered an injury to her lower back over the course of her employment
- Pain and Suffering: $275,000
- Past Loss: $17,160
- Future loss: $125,000
Total PAYOUT
$417,160
EXAMPLE TWO - Total Damages Paid
Michael (52)
Suffered a shoulder injury while making car trailersr
- Pain and Suffering: $175,000
- Past Loss: $0
- Future loss: $0
Total PAYOUT
$175,000
EXAMPLE THREE - Total Damages Paid
Trevor (43)
Suffered a lower back injury over the course of his employment
- Pain and Suffering: $325,000
- Past Loss: $62,400
- Future loss: $750,000
Total PAYOUT
$1,137,400
Conclusion
These are just examples of payouts for a wide range of matters. Every case is different and a number of factors can impact on the ultimate outcome in a matter. Difficulties in establishing negligence on the part of an employer can also impact the outcome of a claim.
The lawyers at Arnold Dallas McPherson are experienced in considering a matter from all angles and are dedicated to understanding you and the way your injury is impacting your life. At Arnold Dallas McPherson we pride ourselves on our expertise and our ability to efficiently advise you regarding your matter.
