Workers Compensation Law (VIC)
If you’ve been injured in the workplace, your life can change in an instant. You can feel like you’re losing control and that no one is there to listen – that’s when many people start to seek legal help. In this guide we’ll explain how Workers Compensation Law works and the steps you may need to take in a WorkCover Claim.
Please be aware that the advice given here is of a general nature, and we recommend that you consult one of our Personal Injury Lawyers first to discuss the particular aspects of your claim. This content also relates to Victorian WorkCover claims only.
Table of Contents
- 1 Outline of the WorkCover Scheme
- 2 Making a Claim
- 3 Think you may have a claim? Start your free WorkCover claims check below
- 4 Medical Expenses
- 5 Income Benefits
- 6 Permanent Injury
- 7 Common law (Fault) Claims
- 8 Death Benefits
- 9 Disputes – What if I am unhappy with a WorkCover decision?
- 10 Costs – How can I pay my lawyer?
Outline of the WorkCover Scheme
WorkCover is a no fault scheme which provides benefits for workers who have suffered injuries whilst at work.
The benefits provided by the scheme to a worker fall into 3 categories:
- Income replacement (weekly payments), paid if you cannot work or work reduced hours and have lost income because of your injury.
- Medical and like expenses, which are paid for medication, medical treatment, physiotherapy, travel, and other assistance.
- Permanent impairment benefit.
- Death Benefit
If a worker dies as a result of a work-place injury, their dependants will be entitled to benefits in these categories:
- Lump sum payment.
- Periodic pension.
- Funeral expenses and counselling.
- Making a Claim
A claim for compensation is made by filling in a claim form, available from your employer, from us or from a post office, and lodging it with your employer.
If your claim is rejected, your benefits stopped or there is some other decision you are unhappy about, you can go to the Accident Compensation Conciliation Service to try to resolve the dispute. If no resolution is reached at conciliation, your dispute can go to a Court or to a Medical Panel.
- Common Law (Fault) Claim: Lump Sum
A common law claim seeking damages for pain and suffering or lost income may be made if:
- someone else has caused your injury; and
- you have a serious injury.
Making a Claim
You can make a WorkCover claim if:
- You are a worker (this can include contractors in certain situations), AND
- Your work caused or significantly contributed to your injury (this includes injuries caused by work over a period of time, and the worsening of pre-existing injuries).
- To make a claim you should:
- Report the injury to someone in authority at work. If there is an Injury Register at work, make sure you report it there. Whatever you do, make sure the report is in writing and get a copy of the written report. The report should be made within 30 days.
- See your doctor, and obtain a WorkCover medical certificate for up to 14 days if you cannot work.
- Complete a WorkCover claim for compensation, and give it to your employer with the certificate. Claim forms are available from post offices, from us and from the Victorian WorkCover Authority at www.worksafe.vic.gov.au.
- Your employer passes your claim on to the WorkCover insurer, unless it is a minor claim (a minor claim is when you are expected to be off work 10 days or less or your medical expenses are expected to be minimal).
- The insurer has 28 days from when it receives your claim from your employer to make a decision. During this time, it is likely that the insurer will send you to a doctor who will provide a report to help the insurer to decide your claim.
- If your claim is rejected, or there is a delay in a decision being made, you can refer your claim to Conciliation.
Think you may have a claim? Start your free WorkCover claims check below
Once your claim has been accepted, you must keep getting medical certificates for 28 days at a time from your doctor to show you cannot work, or that you have restrictions on your ability to work.
Certificates must be given to your employer, who passes them on to the insurer. The insurer then pays the compensation to your employer, who pays you. Your employer takes PAYG tax out of this amount.
It is a good idea to photocopy your certificate twice. Send the original to your employer and a copy directly to the insurer in case there is any delay in your employer passing it on. Keep the other for your own records.
In the initial stages of your claim you can claim all medical expenses related to your work injury as long as they are reasonable and necessary.
You can choose who provides services to you but WorkCover can only reimburse you for services provided by a WorkCover accredited provider.
You can also claim for travel expenses when you see your own treating doctors, allied health professionals, and when you are sent to doctors by WorkCover.
You may also claim for home help, help in the garden or for modifications to your home and car, where necessary. You should discuss these needs with your doctor, who can provide a letter to the insurer setting out your needs.
Once your income payments stop and a year has passed, the rules for claiming medical expenses change. There are exceptions, but in general if the service is essential to ensuring that your health and lifestyle are maintained, or you need treatment to stay at work, WorkCover remain liable.
Your employer is required to help you design a rehabilitation and return to work plan, preferably with a rehabilitation provider. You must take all reasonable steps to participate in rehabilitation and to return to work. If you do not make reasonable attempts to return to work, your benefits can be stopped.
Income replacement or “weekly payments” changes over time according to how long you have been receiving payments. However, the payments are always made as a percentage of your Pre-Injury Average Weekly Earnings (“PIAWE”). Weekly payments are capped at a maximum amount. The significance of overtime, shift allowances and penalty rates and the like in working out your PIAWE is complicated, and changes over time. Seek advice if you are unclear about this.
The rate at which compensation is paid varies in the following way, depending on whether you are totally or partly incapacitated for work, and how long you have been receiving payments.
Total incapacity means you cannot work at all.
Partial incapacity means you cannot do all of your pre-injury work, but you can do some work.
First 13 weeks
- For total incapacity – 95% of PIAWE
- For partial incapacity – If you are performing some work, your actual earnings will be topped up by WorkCover payments to 95% of PIAWE.
- For total incapacity – 80% of PIAWE.
- For partial incapacity – 80% of your actual earnings, less 80% of PIAWE.
In the first 52 weeks, overtime and shift allowances are included in your PIAWE. After 52 weeks, these are excluded from PIAWE, which can mean a drop in payments at that time for some workers.
After 130 weeks
After 130 weeks of incapacity, a decision is made by the insurer as to whether you have a current work capacity. Your weekly payments only continue if:
1. You have no current work capacity, and that is likely to continue indefinitely. You will continue to receive 80% of PIAWE;
2. You are working at least 15 hours a week, earning a minimum amount and are working to your full capacity. You will receive the difference between 80% of your earnings and 80% of your PIAWE. However you must make a separate application to WorkCover for such payments.
- Make-up Pay
Some awards provide for your employer to top-up or “make-up” your WorkCover payments for a period, often the first 26 weeks. This is an obligation of your employer, not the WorkCover insurer.
In certain circumstances, lump sum compensation may be paid for permanent impairment of a part of your body.
This compensation is only paid if:
- your condition has stabilised, AND
- you are assessed as having a 10% whole person impairment (30% in the case of psychological impairment), OR
- you have suffered a total loss of effective use of a body part including an amputation.
If you have an injury to your hands, arms, legs, feet or spine which occurred after 3 December 2003, you will receive compensation if you are assessed at 5% whole person impairment or more.
Note: Accepting an impairment benefit does not affect your other entitlements.
Applying for a permanent impairment benefit
Making a claim for an impairment benefit is an important step, and we recommend that you seek help from us to make this claim. We would take the following steps:
- Obtain all relevant treating doctors’ reports.
- Complete a claim form for permanent impairment, at least 12 months after your injury date, and lodge it with the WorkCover insurer, together with medical reports.
- The WorkCover insurer will send you to a doctor for an assessment.
- The insurer receives the doctor’s report and advises you whether you have an entitlement to compensation, and if so, how much.
- If you are not happy with the WorkCover decision, you may refer your claim to a Medical Panel.
Common law (Fault) Claims
- A common law claim is a claim made when you can show that fault or “negligence” on the part of your employer or some other person has caused your injury.
- A successful common law claim results in a payment of a lump sum called “damages” to you.
- You must show you have suffered a “serious injury” to be able to claim damages.
- The process of showing you have a serious injury usually begins with an assessment of your permanent impairment.
- If your permanent impairment is 30% or more (this is quite rare), you will automatically qualify with a serious injury.
- If your permanent impairment is less than 30%, and you want to claim common law damages, you will need to apply to the WorkCover insurer for a serious injury certificate. This requires:
- permanent serious impairment or loss of a body function; or
- permanent serious disfigurement; or
- permanent severe mental or permanent severe behavioural disturbance or disorder; or
- loss of a foetus.
- If the WorkCover insurer will not grant you a serious injury certificate, we can appeal this decision in the County Court.
Once you have proved your serious injury, your lawyer must negotiate with the WorkCover insurer for the appropriate payment of damages (money) to you. If negotiations fail, we will go to Court for you.
Damages have two components:
General damages are paid for pain and suffering and loss of enjoyment of life. If you can show that you have a permanent serious injury, you can claim general damages for pain and suffering, even if you are still working.
Loss of Wages – You can claim a lump sum for past and future loss of wages if you have a serious injury and you have suffered a permanent 40% loss of earning capacity compared with your pre-injury earning capacity.
Once you receive a lump sum for lost wages, your weekly payments of compensation will stop.
If you receive a lump sum, whether for lost wages or for pain and suffering, you are still entitled to payment of medical benefits.
As part of the process of showing you have a serious injury, you must show that you have tried to obtain other work or to involve yourself in a rehabilitation program to maximise your employment opportunities. It is helpful to keep a diary recording these efforts from as early as possible.
If work has contributed to the death of a worker, the dependants of the deceased worker can claim these benefits:
- a lump sum to be divided between a dependent spouse and dependent children;
- a weekly pension for dependants for three years and in the case of children, to age 16. If a child is a full-time student, the pension will continue so long as the child is a student or until 21, whichever occurs first;
- family counselling by a doctor or psychologist;
- reasonable costs of burial or cremation.
If death has been caused by negligence, the dependants of the worker may possibly sue for damages. However, because such damages are off-set against Death Benefits, claims for common law damages in this circumstance are rare. Legal advice is essential in these circumstances.
Disputes – What if I am unhappy with a WorkCover decision?
Any decision made by a WorkCover insurer may be referred to the Accident Compensation Conciliation Service. Conciliation is meant to be a process controlled by the independent conciliator which allows discussion of the dispute. The conciliator helps you to find a way to resolve the dispute, but has only limited powers to make a binding decision.
You do not need a lawyer to go to conciliation, but you may find it helpful. You may want to take a friend with you.
What you need to do is:
- Within 60 days of the decision being notified to you, complete a Request for Conciliation form.
- Send the form and any medical reports supporting you, and a short written summary of what should happen and why, to the Accident Compensation Conciliation Service.
- A date for a conciliation meeting will be set, and you will be notified.
We can assist you:
- to lodge the conciliation request;
- to obtain all relevant material and file it with the Conciliation Service;
- by attending conciliation with you.
If you are not happy with a conciliation outcome, seek legal advice before the outcome is finalised. You may be able to take the dispute to court for a decision.
Can I appeal to Court?
Yes. If conciliation is unsuccessful, you may issue proceedings in the Magistrates’ Court or County Court.
Sometimes medical questions are referred from conciliation or court to a Medical Panel. A Medical Panel is made up of a number of doctors who will read the documentation, examine you and make a decision on the medical question which is then binding on the parties and on the Court.
Costs – How can I pay my lawyer?
Legal costs can be expensive, but we will do all we can to help. What we can do includes:
- Free first interview
- No charges until you win (in approved cases). Please discuss what this means at our first interview.
- Paying for the medical reports, court fees, and other expenses on your behalf as we run the claim (in approved cases)
We will discuss costs in detail with you at our first interview. We will always answer your questions about costs. We will clearly advise you of the total costs when you come to settle your claim.