WorkCover Explained

The information provided is of a general nature only, and legal advice should be obtained before acting on the information supplied.

INTRODUCTION

This introduction is a very broad outline of the WorkCover scheme. For more information on each topic, please follow the page references to the detailed explanations that follow. The information provided is of a general nature only, and legal advice should be obtained before acting on the information supplied.

WorkCover is a no fault scheme which provides benefits for workers suffering injuries caused by their work.

  1. Benefits

    The benefits provided by the scheme fall into 3 categories:

    1. Income replacement (weekly payments), paid if you cannot work because of your injury.
    2. Medical and like expenses, paid for medication, treatment, physiotherapy, travel, etc.
    3. Permanent impairment benefit.

  2. Death Benefit

    If a worker dies as a result of a work-place injury, their dependants will be entitled to benefits in these categories:

    1. Lump sum payment.
    2. Periodic pension.
    3. Funeral expenses and counselling.

  3. 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.

  4. Disputes

    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.

  5. Common Law (Fault) Claim- Lump Sum

    A common law claim seeking damages for pain and suffering and/or lost income may be made if:

    • someone else has caused your injury; and
    • you have a serious injury.

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MAKING A CLAIM

You can make a WorkCover claim if:

AND

Claims process

  1. To make a claim you should:

    1. Report the injury to someone in authority at work within 30 days.
    2. See your doctor, and obtain a WorkCover medical certificate if you cannot work.
    3. Complete a claim for compensation, and give it to your employer. Claim forms are available from post offices, from ARNOLD DALLAS McPHERSON or the Victorian WorkCover Authority.

  2. 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).

  3. The insurer has 28 days to make a decision, or if your claim is for medical expenses only, 60 days. 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.

  4. If your claim is rejected, or there is a delay in a decision being made, you can refer your claim to Conciliation.

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.

It is a good idea to photocopy  your certificate twice, sending one copy directly to the insurer, in case there is any delay in your employer passing it on, and keeping the other for your own records.

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MEDICAL EXPENSES

You can claim all medical expenses related to your work injury so long as they are essential to your health and lifestyle.  Medical services must be provided by a WorkCover accredited provider.

You can also claim for travel expenses when you see your own treating doctors 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.

Rehabilitation

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 in suitable employment, consulting with your doctor as to what is suitable and reasonable. If you do not make reasonable attempts to return to work, your benefits can be stopped.

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INCOME BENEFITS

  1. Earnings

    Income replacement or “weekly payments” change according to how long you have been receiving payments (see below). However, the payments are always made as a percentage of your Pre-Injury Average Weekly Earnings (“PIAWE”).

    PIAWE is your ordinary earnings, without overtime, penalty rates, or other loadings. For example, if you are paid $15 an hour, for a 38 hour week, your PIAWE will be $570.

    Any overtime or penalty rates will be excluded. However, if you were injured on or after 20 October 1999 and you can establish a regular pattern of overtime or shift allowances, then they can be included in the calculation of your weekly entitlements, but only for the first 26 weeks.

  2. Rates

    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

    Remember that for this period regular overtime and shift allowances are included in the calculation of PIAWE (if you were injured on or after 20 October 1999).

    • For total incapacity – 95% of PIAWE
    • For partial incapacity – Your actual earnings will be topped up by WorkCover payments to 95%.

    A maximum payment applies, and is subject to variation. Contact us for details.

    13-130 weeks

    • For total incapacity –75% of PIAWE.
    • For partial incapacity – 75% of your actual earnings, less 75% of PIAWE.

    Note  After 26 weeks, regular overtime is excluded from PIAWE.

    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 75% of PIAWE;

    OR

    2. You are working at least 15 hours a week, earning at least $100 a week and are working to your full capacity. You will receive the difference between 60% of your earnings and 60% of your PIAWE.

  3. 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.

  4. Injuries before 12 November 1997

    If you have an impairment of 30% or more you are entitled to 90% of your PIAWE, but only if you were injured and made a claim before 12 November 1997.

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PERMANENT INJURY

In certain circumstances, lump sum compensation may be paid for permanent impairment of a part of your body, or for damage to an organ.

If you were injured on or after 12 November 1997, this compensation is only paid

Note  Accepting an impairment benefit does not affect your other entitlements.

Applying for a permanent impairment benefit

We recommend you seek help from us to make this claim. We would take these steps:

  1. Complete a claim form for permanent impairment, at least 12 months after your injury date, and lodge it with medical reports from your treating doctors.

  2. The WorkCover insurer will send you to see a doctor to help them decide whether you do have an entitlement to a permanent impairment benefit.

  3. If the insurer assesses you as have at least a 10% impairment or as having suffered a total loss, they will offer you an impairment benefit.

  4. If you are not happy with the WorkCover decision, you may refer your claim to a Medical Panel.

Injuries arising before 12 November 1997

If your injury arose before 12 November 1997, a different procedure applies.

You will be entitled to compensation for a permanent impairment even if it is less than 10%. You may also be entitled to payment for pain and suffering.

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COMMON LAW (FAULT) CLAIMS

  1. 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.

  2. A successful common law claim results in a payment of a lump sum called “damages” to you.

  3. If you were injured:-

    - on or after 20 October 1999
    OR
    - before 12 November 1997, provided that the incapacity arising from the injury was not known until after 12 November 1997,
    AND
    - you have suffered a “serious injury”

    you may be able to claim common law damages.

Serious Injury

  1. The process of showing you have a serious injury usually begins with an assessment of your permanent impairment.

  2. If your permanent impairment is 30% or more (this is quite rare), you will automatically qualify with a serious injury.

  3. 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 which is granted if you have suffered:

    • 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.

  4. If the WorkCover insurer will not grant you a serious injury certificate, we can appeal this decision in the County Court.

Damages

Once you have proved your serious injury, we 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 only claim a lump sum for past and future loss of wages if you have suffered a permanent 40% loss of earning capacity compared with your pre-injury earning capacity.

If you receive a lump sum, whether for lost wages or for pain and suffering, you are still entitled to payment of medical benefits.

Rehabilitation

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 soon as possible.

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DEATH BENEFITS

If work has contributed to the death of a worker, the dependents of the deceased worker can claim these benefits:

If death has been caused by negligence, the dependents of the worker may sue for damages.

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DISPUTES - What if I am unhappy with a WorkCover decision?

Conciliation

Any decision made by a WorkCover insurer may be referred to conciliation. 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:

  1. Within 60 days of the decision being notified to you, complete a Request for Conciliation form.

  2. 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.

  3. A date for a conciliation meeting will be set, and you will be notified.

We can assist you

If you are not happy with a conciliation outcome, seek legal advice. 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 Court.

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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:

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