Victorian WorkCover (injuries after 20 October 1999)

WorkCover is a “no fault” statutory workers compensation scheme. Pursuant to the scheme you have three basic sets of rights and entitlements:

• to weekly payments;
• to payment of medical and like expenses;
• to a lump sum pursuant to Section 98C.

Should a worker sustain an injury in the course of their employment it should be reported in the Injury Report Book within 30 days of the worker becoming aware of the injury. If your injury has not been formally reported, you should do so.

In order to be entitled to benefits a WorkCover claim form on the prescribed form must be completed and if the claim is for lost time then a medical certificate on the prescribed WorkCover form must also accompany the claim form.

The employer has 10 days from receiving the application to accept or reject the claim and to forward the claim to the authorised insurer. If the employer refuses or neglects to deal with the claim it should be forwarded directly to the authorised insurer or Victorian WorkCover Authority.

The authorised insurer has 28 days from accepting receipt of the claim in which to accept or reject the claim on the merits and provide a notice in writing to the worker advising of its decision. This time limit does not apply to claims limited to medical expenses only.

If the claim is accepted weekly payments should be paid before the expiry of seven days after the week in respect of which it is payable.

If the claim is rejected or there is any other decision made by the WorkCover Insurer/Self-Insurer which you disagree with, a Request for Conciliation appealing this decision must be lodged with the Accident Compensation Conciliation Service within 60 days. If the Conciliation is unsuccessful then legal proceedings taking the dispute to court can be issued.

Weekly Payments

There are three key time periods relating to weekly payments of WorkCover benefits:

• the first 13 weeks;
• between 13 and 104/130 weeks;
• 130 weeks and beyond.

Please note that you may have a separate right to “make up pay”. This entitlement would be governed by your employment contract.

I shall deal with each of the time periods:

First 13 Weeks

For the first 13 weeks you will receive 95% of your pre-injury average weekly earnings (PIAWE) up to a maximum of $1,760.00 gross per week, whichever is the lesser. Please note that pre-injury average weekly earnings are not a simple calculation of your yearly gross earnings divided by 52. Unfortunately, a lot of normal payments are excluded from the definition. The weekly rate calculation will take into account overtime and shift allowance up to a maximum period of 52 weeks. Each case needs to be specifically examined to determine whether or not the authorised insurer is making payments based on the correct rate.

13 to 130 Weeks

After the first 13 weeks, the weekly payment rate will reduce to 80% of your pre-injury income.

Please note, that superannuation is payable after the first 52 weeks of WorkCover payments. The superannuation will be a percentage of the weekly payments.

130 weeks and Beyond

At the expiration of 130 weeks, payments of your WorkCover weekly benefits will cease unless you satisfy one of two criteria:

1. That you are classified as having no current work capacity and that your impairment is permanent. You would receive 80% PIAWE;
2. That you are classified as having a current work capacity. In order to be entitled to ongoing weekly payments you must then be:
   
   
   • working at least 15 hours per week; and
   • earning more than $139.00 per week; and
   • be indefinitely incapable of further or additional employment.
   You would then receive the difference between your actual earnings and 80% of your PIAWE/notional earnings.

Please note that there is a further entitlement period for weekly payments for up to 13 weeks for injured workers who have returned to work, but who require surgery for their work injury.

Medical Expenses

Reasonable medical expenses will be paid whilst you are incapacitated and for a period of 52 weeks after the right to weekly payments ceases unless the authorised insurer determines otherwise. The payment of medical and like expenses will not cease if it can be shown that the service is essential to ensure your health and lifestyle does not significantly deteriorate or if you have returned to work but could not remain at work if the medical service was not provided. The insurer is also liable for costs associated with surgery and costs such as prosthesis and the like.

Lump Sums Pursuant to Section 98C

You are entitled to bring a claim for lump sum compensation for impairment if:

• you have sustained a permanent injury/impairment;
• the impairment is at least a 10% whole person impairment pursuant to the Fourth Edition of the American Medical Association Guides to Permanent Impairment for physical injuries (or deemed to be 10%);
• for psychiatric injuries the impairment must be at least 30% AMA;
• the injury/impairment has stabilised.

A worker, in normal circumstances, is not able to proceed with their Section 98C Impairment Benefit application until 12 months after the date of their injury. Further, the insurer will not process this application unless they are satisfied that the injuries are stabilised and permanent.

The process, in very simple terms, to be followed for a Section 98C claim is:

• The claim form for permanent impairment benefits together with a Solicitor’s Inquiry Form is completed and served on the employer. It is important that all injuries are properly recorded on this form. You cannot lodge a subsequent claim for any injuries not included. It is necessary that all doctors/health service providers who have treated you in respect to these injuries be listed. It is also essential that any pre-existing injuries/treatment be listed. You need to ensure that the Section 98C impairment claim is true and correct in all particulars and has listed all injuries prior to signing the application.
• The insurer then has 90 days in which to accept or reject the application.
• If the application is rejected, application must be lodged to the Accident Compensation Conciliation Service within 60 days.
• If the claim is accepted, then the authorised insurer will organise for a medical assessment to be undertaken for the purposes of the impairment benefit assessment.
• After the insurer receives the impairment assessment, the insurer is supposed to make an offer based on that doctor’s report.
• If the worker is unhappy with the Impairment Assessment made by the doctors nominated by the insurer then the worker has the right to have the matter referred to the Medical Panel which is set up under the Accident Compensation Act for final assessment.
• If the matter is referred to the Medical Panel, once the authorised insurer receives the Medical Panel’s determination then an offer should be made in accordance with that assessment.

Please note, that a worker has no right of appeal from a Medical Panel determination except in very limited circumstances.

The interpretation and application of the AMA Guides and the negotiation of such claims is a complex and difficult process. You need expert advice in respect to the preparation and processing of such claims. We can provide this at Clark Toop & Taylor

Medical Certificates

Please note, that unless and until you are given a total clearance/your injuries are 100% recovered, you should continue to obtain medical certificates on the prescribed WorkCover form every 28 days (or if the insurer is in agreement, every 3 months). You should have these certificates lodged with your employer/the authorised insurer and you should keep copies. Please note it is terribly important that you do this. If you fail to obtain and lodge a medical certificate/have continuity with your medical certificates, then your entitlements may be adversely and irretrievably prejudiced or extinguished. Whilst it is an inconvenience to do this, in order to protect your position under the Accident Compensation Act it is necessary.

Lump sums

Lump sums paid for superannuation, redundancy, termination of employment, whilst in receipt of weekly payments of compensation from your employer can act as a dollar for dollar preclusion to the amount of WorkCover weekly payments you are paid depending on the amount paid and what it comprises. You should seek advice as to how any of these lump sums may affect your WorkCover weekly payments.

General Advice

The above information represents very general advice only and is meant only to give you a guide to your entitlements. If you have any specific queries or concerns, you should make an appointment at this office and discuss the matters with me.

COMMON LAW

A worker who suffers an injury in the course of their employment may have a right to bring a common law claim for damages. Normally there are two criteria which must be satisfied in order to bring such a claim:

1. there was negligence on behalf of the employer (or some third party); and
2. the worker has suffered a “serious injury”.

A damages claim seeks compensation for:

1. pain and suffering and loss of enjoyment of life; and
2. economic loss past, present and future (assuming the necessary criteria is reached).

Negligence will usually fall within one (or more) of three categories:

1. an unsafe system of work;
2. unsafe or defective equipment/workplace;
3. careless or unsafe actions or practices of fellow workers.

Pursuant to the provisions of the Accident Compensation Act, a “serious injury” is defined as follows:

1. An impairment of 30% or more pursuant to the American Medical Association Guide to Permanent Impairment.
2. A permanent and serious impairment or loss of a body function.
3. Permanent serious disfigurement.
4. Permanent severe mental or permanent severe behavioural disturbance or disorder.

The terms “serious” and “severe” are to be satisfied by reference to the consequences to the worker with respect to:

• pain and suffering; or
• loss of earning capacity.

Should you wish to proceed with an application for a serious injury determination, there are two options. The first option, is to lodge an Impairment Benefit application under Section 98C/E and Section 104(B) of the Act. The process to be followed in this regard is outlined earlier in this correspondence. You should note that a worker cannot normally proceed with a Section 98C/E application unless:

• 12 Months has passed since the date of the injury; and
• the injury has stabilised.

If a worker’s determination under Section 98C is greater than 30% then the worker has a deemed “serious injury”. The 30% level is very difficult to be achieved by the majority of people injured in industrial accidents/in the course of their employment (even though they suffer very severe injuries and their capacity for work, recreational, social, domestic and day-to-day activities has been greatly interrupted).

Should the worker not achieve the 30% AMA impairment level, then the next step is for an application to be made under Section 134AB seeking a “serious injury" pursuant to sub-section (19).

It is necessary, in making such an application, to prepare detailed Affidavits and to have medical and other expert reports provided. Once the application is lodged the Victorian WorkCover Authority/Self-insurer has 120 days to accept or reject the application.

If the application is accepted, then the worker must participate in a compulsory conference with the authorised insurer and then a series of statutory offers must be made if the case cannot be settled. It should be noted, that the statutory offers are associated with significant cost penalties. If the matter does not settle at the compulsory conference, or subsequently when the statutory offers are made, then the matter would need to proceed via the Court process.

Do you have an injury that is "serious"?

WorkCover is a complex legal maze and not for inexperienced operators. Its complexity is compounded by the number of amendments and volume since its creation in 1985.

Part of the Act, enables injured workers to seek money for their injuries if caused by the negligent acts or omissions of another party. Negligence is a whole new field which will not be elaborated upon here.

• Gateway

The WorkCover legislation provides "gateway provisions" that must be complied with before an injured worker can seek money for Common Law damages. Common Law damages is money for past and future pain and suffering and past and future loss of wages (ie, it does not incorporate a claim for any past or future medical expenses which exist in their own right under the WorkCover Act: s99).

Therefore, the gateway provisions must be complied with. The gateway provisions require an injured worker to have a "serious injury". Any common law claim ought be pursued within six years of the date of injury .

• The Affects to you

Although medical reports are relevant to serious injury, we prefer to place the emphasis on the injured worker determining whether the injury is serious to them. The courts are much more interested in hearing from a worker and whether the injury is serious to them than listening to the opinions of various doctors who may only be blessed with a short and sharp presentation of an injured worker that may be on any "good" or "bad" day.

Rather, it is important that an injured worker (or for that matter an injured person in a transport accident) adequately express how the injury affects their day to day life and work. It is an imprecise science and sometimes it is a matter of just simply sitting down with the injured person and listening properly. We do this at Clark Toop & Taylor.

The courts are not concerned only with the injury, but rather with the consequences of the injury. How does the injury affect the injured workers day to day life and work capacity.

Sometimes this is a matter of expression or articulation but our practitioners are able to ascertain how any particular injury can have a very narrow consequence or very wide ranging consequences that on a proper legal analysis would classify as being serious to that individual.

• It is a subjective test

Determining "Serious Injury" is a subjective test. It is how the injury affects you. The court is required to compare the consequences with other injuries in the same range of impairments but ultimately, the court has to understand how the injury has affected you in order to ascertain whether the court considers that the injury has serious consequences to you.

• The consequences must be marked or very considerable

The court has determined that the consequences must be marked or very considerable to you. Sometimes only one consequence is enough to be serious or in other cases a range of consequences is necessary. It is no one size fits all and we think that is important as the court has the discretion to enquire into, investigate and accept how an injury has various consequences in differing ways to differing individuals. After all, we are all different and unlike parliament, the court is not interested in "pigeon-holing" injured workers. Ie, the court does and is prepared to listen and hear how any injury has affected you.

This does not mean, the injured worker should exaggerate, but rather be frank, forthright and honest in their appraisal of how the injury affects them. Some people are stoic; some people are determined; some people need more time to express themselves. We take the time at Clark Toop & Taylor.

Whatever the presentation, it is important that the full nature and extent of the consequences are understood in order to determine whether the injury is serious to any particular injured worker and to this extent, it is important that you express how the injury stops you from doing certain activities or how you have changed or adapted in your day to day life.

Most injured workers will have tried to do certain activities but subsequently avoid them because of the pain that it causes. Its a matter of expression; that is whether an injured worker cannot do something or whether the injured worker has difficulties with an activity or a wide range of activities.

• Serious Injury for pain and suffering

The courts are required to determine whether an injury is serious to an injured worker based upon the pain and suffering and loss of enjoyment consequences of an injury. The vital aspect is the consequence not necessarily the injury. As expressed, it can sometimes be one consequence but in other circumstances it may require a number of consequences. Most importantly, the court is very concerned with credibility and accepting what the injured worker says are the limitations, restrictions and/or difficulties with pre injury and post injury activities.

• Serious Injury for loss of earning

Whether an injured worker has a serious injury for loss of wages, requires a consideration of the pre injury earning capacity with the post injury earning capacity.

The comparison must bring about a 40% loss of earnings at the time of trial.

Pre injury earning capacity

In determining whether an injured worker has a serious injury for loss of earnings, the first point is to determine what the earning capacity of the injured worker was at or shortly prior to the initial injury.

The earning capacity may well be full time or full time plus overtime.

The earning capacity may take into account promotions, career improvements, or job reclassifications.

The pre injury earning capacity can look at what actually is occurring at the time of injury but also as to what could have happened if not injured. This is a determination of what the possible earning capacity was at the time of injury.

Post injury earning capacity

The second stage is to look at what the injured workers capacity is with injury taking into account retraining and rehabilitation possibilities. Sometimes it is clear with injured workers that given their education, training and skills that they will, given their injury, be unable to return to work in any form or capacity.

It becomes more difficult when there is an earning capacity of some description. It is recommended that after injury, injured workers should attempt return to work plans or programs or explore employment opportunities as this will crystallise what the earning capacity is.

Sometimes injured workers can manage some hours per week or alternatively some hours per day with breaks ie Monday, Wednesday, Friday.

The crystallisation of what we can do with your injury becomes very important as it crystallises the "after injury" earning capacity. It is that which needs to be compared with the pre injury earning capacity to determine whether there has been a 40% loss of earning on account of injury.

We will not elaborate in greater detail the issue of serious injury for loss of earnings as it is a very complicated process that has to take into account many variables especially as the injured worker often has an injury that is variable; that is; it sometimes improves; deteriorates or the injured worker may have a good day as distinct from a bad day.

Post injury work requires the worker to be reliable, productive and efficient

The key aspect is that any proposed employment with injury must be able to be performed by the injured worker reliably, productively and efficiently. It is not advisable to put an injured person up as being more capable than what they are as it really is dependant upon the injured worker being able to do the job as expected, that is; without taking time off work to seek treatment; without taking days off in between; or not being able to do some duties.

The injured worker when considering after injury earning capacity, must be able to perform any proposed job reliably, productively and efficiently. Without that proviso, any proposed job is simply hypothetical and it is important that the court is informed of the realistic ability to perform after injury employment opportunities with the proviso that the injured worker does that job reliably, productively and efficiently.

• Conclusion

In proceeding with a Common Law claim for damages, the gateway requires an injured worker to have a serious injury for pain and suffering or a serious injury for pain and suffering and loss of earnings. The courts have been grappling with the issue of serious injury since 1992 and this comment provides a broad overview of what is considered to be important.

For our mind, what is important is YOU!

What is important is how this injury affects you and how the injury has resulted in consequences to you.

We cannot express more openly , that it is the consequences of the injury to an injured worker that must be ascertained to determine whether the injury is serious to any one individual. Medical opinion does assist the court but ultimately it comes down to the credibility of the injured worker as to whether they are able to be frank, forthright and genuine in how the injury affects their day to day life and work capacity.

The scheme is not for the faint hearted or the inexperienced legal practitioner. Clark Toop & Taylor holds the expertise, experience and ability to represent injured workers appropriately and vigorously and Clark Toop & Taylor looks forward to the ongoing relationship with each and every client.