WorkCover

Information courtesy of Maurice Blackburn Cashman. 

Your rights and benefits under WorkCover have again been altered. It can be a very complicated process, and the benefits that you are entitled to can vary greatly depending on when you were injured. This information is designed to assist you with some of the basics. If you are injured, you should seek advice from your union or Maurice Blackburn Cashman.

Who can claim compensation?

If you suffer an injury arising out of, or in the course of, your employment to which employment was a significant contributing factor, you can claim compensation. These rights come under the label 'WorkCover'.
WorkCover covers all injured workers, including part-time workers, casual workers and in many circumstances sub-contractors, such as owner/drivers and agency nurses.
You can claim compensation for the aggravation, acceleration, exacerbation, deterioration or recurrence of injuries. Injuries including cancers, strokes, asthma, heart conditions and degenerative conditions are often aggravated or exacerbated by employment.
Injuries suffered during normal recesses, such as morning or afternoon tea-breaks, are covered in most circumstances.
As long as you can show some relationship between your employment and the injury, you may be able to claim compensation. Contact Maurice Blackburn Cashman or your union for further advice.

How do I claim compensation?

To claim compensation, you must: 

1. Report your injury to your employer within 30 days of becoming aware of the injury. Failure to do so may result in your right to claim compensation being lost unless you can show that it was not reasonably practicable or that the failure to report the injury did not unfairly prejudice your employer or that to deny you compensation would result in a serious injustice to you;

2. Complete a WorkCover claim form . This is a standard form available from your employer, your union, a post office, Victorian WorkCover Authority or Maurice Blackburn Cashman. When you fill out the form you should keep your description of your injury and circumstances brief. Sign the form and have it witnessed;

3. Medical Authority . This must be signed and is included in the claim form. It gives the WorkCover Authority or Authorised Insurer access to medical records relating to your injury. It does not entitle the Authority or Authorised Insurer to pry into your past medical history.

4. Initial WorkCover medical certificate . This must be obtained from your doctor and must be included if you wish to obtain weekly payments. Your first certificate can be for a period of up to 14 days. Subsequent certificates can be for 28 days and may be provided from treating practitioners, such as chiropractors or physiotherapists.

If you are claiming only for medical expenses, it is not necessary to provide a medical certificate.
Keep a copy of the claim form and medical certificate. Give the originals to your employer as soon as possible. Make sure they sign the form and date it on the day you provide it to them.
If you think your employer will refuse to accept your claim or refuse to forward the claim to the Insurer, you can lodge the claim directly with the Victorian WorkCover Authority or with the Authorised Insurer of your employer.

What are my weekly benefits?

The level and rate of weekly payments depends largely on when you made your claim.
The level of your weekly payments and the rate of pay is based on your pre-injury average weekly earnings.
For claims after 1 September 2000, you include regular overtime and regular shift allowances in calculating pre-injury average weekly earnings during the first 26 weeks of incapacity. After the first 26 weeks of incapacity, your pre-injury weekly earnings are calculated on your base wage and exclude any allowances, penalty rates, overtime, etc.
Under the current legislation, the maximum rate for weekly payments is $924.00.
In addition to weekly payments of compensation, you may also be paid make-up pay or accident pay by your employer in accordance with your industrial award. The period of make-up pay can vary greatly, and you should check this with your union.

How long can I receive weekly payments?

Generally you are entitled to payments for a period of up to 104 weeks of incapacity.
Under WorkCover you can be paid compensation beyond 104 weeks, providing you can show:

1. serious injury (if the claim was made before 12 November 1997); or

2. that you have no current capacity for work and this is likely to continue indefinitely; or

3. you have a current capacity for work (i.e. you are unable to return to your former work but are able to return to suitable work) and are:

1. working at least 15 hours per week;

2. earning at least $108.00 per week; and

3. likely to continue indefinitely to be incapable of undertaking further or additional employment which would increase your earnings.

In either of the above cases, you will continue to receive weekly payments.
When assessing your level of incapacity, you look not only at the physical injury but at the whole effect of the injury on you, including your age, education, skills and whether there is any realistic employment opportunity in the labour market.
Should you have queries regarding the level of your weekly payment, contact Maurice Blackburn Cashman or your union.

What medical expenses are payable?

WorkCover will pay all reasonable medical, hospital, nursing, personal and household, occupational, rehabilitation and ambulance services.
Expenses, such as doctors, chemists, physiotherapy and chiropractic bills are covered. In addition, attendant care, modifications to a home or car, home help and transportation costs will be paid for, providing they are approved by WorkCover.
This continues whilst you are on weekly payments and for at least 52 weeks after your right to weekly payments ceases.
If you incur ongoing medical expenses after this time, you may still be paid for these medical expenses providing:

1. you have returned to work and could not continue to work if the medical service was not provided; or

2. you require surgery; or

3. you have a 'serious injury'; or

4. you require modification of a prosthesis; or

5. the medical service is essential to your ensuring that your health and lifestyle do not significantly deteriorate.

How long do they have to accept my claim?

Your employer must forward your claim to the Authorised Insurer within 10 days if they intend to reject your claim or if your claim is for more than 10 days incapacity. Once the Authorised Insurer has received you claim, they have 28 days to notify you in writing of their decision to either accept or reject your claim.
During this time, you may be contacted by a WorkCover investigator. You do not have to speak to them or provide a statement and you are within your rights to refuse.
You may be asked to attend a doctor's appointment. You must cooperate with such a request.
If you are not notified in writing within 28 days of the insurer receiving your claim, then your claim is deemed to have been accepted and weekly payments must commence. Contact Maurice Blackburn Cashmen or your union if you need assistance.

Coordinated Care Program

WorkCover may require you to submit a written proposal for a coordinated care program. The program must be prepared by your doctor and set out the type, extent and nature of treatment required by you and the services required. You may also be required to attend a doctor nominated by the insurer.
Failure to cooperate or submit a plan could result in your right to payment of medical expenses being lost.

What do I do if my claim is rejected or my payments are reduced or stopped?

In most instances, the WorkCover Authority or Authorised Insurer will provide a notice in writing of their intention to either reject, stop or reduce your payments of compensation. The notice should provide the reasons for the WorkCover Authority's decision. If you disagree with the decision, you may make a request for conciliation. Any dispute regarding weekly payments or medical expenses must first go through conciliation.
If WorkCover is seeking to stop or reduce payments, you will generally be given 14 to 28 days notice in writing.
Your payments may be stopped or reduced without notice in writing if:

1. fraud is alleged;

2. you have reached retirement age or 65 years;

3. you have received a lump-sum termination or redundancy payment;

4. you have received a lump-sum superannuation payment and have not rolled it over into an approved fund;

5. you have ceased to reside in Australia and have not applied for payments on the basis of having no current work capacity;

6. you are in prison;

7. you have returned to work.

You do not have to accept the WorkCover Authority's decision. If you wish to dispute the decision, you should contact your union or Maurice Blackburn Cashman immediately for advice. Generally if you wish to dispute a decision, you must do so within 60 days of receiving the notice.

Occupational Rehabilitation and Return To Work

Your employer is responsible for establishing an occupational rehabilitation programme and a return-to-work plan.
You must make all reasonable efforts and cooperate with an occupational rehabilitation plan. Failure to do so may well affect other rights under the Act, including your right to sue your employer.

Return To Work Plan

Your return-to-work plan should be in writing and must include:

1. the date that you should be fit to return to work;

2. the particulars of the offer of employment;

3. the appropriate steps taken to enable you to return to work; and

4. any occupational rehabilitation service that is necessary for your return to work and the maintenance of your return to work.

You should discuss the terms of a return-to-work plan with your doctor. If your doctor disagrees with the terms, he or she should provide a written response to the employer or Authorised Insurer as soon as possible.
If you need time for your doctor or rehabilitation provider to consider the plan, then ask for the time.
Any offer of employment from your employer must be considered seriously. It is unwise to refuse an offer of employment outright. If your doctor or rehabilitation adviser considers you capable of doing the job offered, then you should commence the job on a trial basis. An unreasonable refusal of a job offer may result in your payments being terminated and affect your other rights to sue.

Conciliation

Conciliation is an informal procedure where you, the employer and the Insurer get together and try to reach agreement over the dispute. Sometimes your union will be able to be with you to assist at conciliation.
There is no time limit during which the conciliation conference must be held. Generally you will receive notice of the proposed conference date.
You may be requested by the conciliation officer to supply documents or provide information which the conciliation officer considers relevant. You should cooperate with this. Failure to produce such documentation or refusal to cooperate will prevent the documents from being used in any subsequent court proceedings.
Do not enter into any agreement at conciliation without obtaining advice. If an offer is made to you, contact your union or Maurice Blackburn Cashman.
A conciliator must be satisfied that all reasonable steps have been taken by you to settle the dispute before a certificate of genuine dispute will be issued.
Until a certificate of conciliation is issued, no court proceedings or other proceedings can be commenced in your claim.
If you are not happy with the conciliation outcome, then you can proceed to the Magistrates' or County Court with your dispute. Contact Maurice Blackburn Cashman for advice.

Do I have to look for alternative work?

Under WorkCover you must make all reasonable efforts to return to work, participate in assessments of your work including medical examinations, and, if necessary, make all reasonable efforts to return to work in alternative employment where your employment where your employer is unable to offer you a suitable job.
If you are looking for alternative employment, you should keep a list of the employers to whom you have applied for jobs, the dates of interviews or application and the particulars of the jobs for which you have applied. If you obtain employment, you should notify the Insurer immediately.

Medical examinations - do I have to attend?

You are required to attend reasonable medical examinations arranged by the WorkCover Authority, Authorised Insurer and, in some circumstances, your employer.
Failure to attend medical examinations can result in your weekly payments being suspended.
Most doctors conduct medical examinations in a proper manner. However, if you have a complaint about the way you have been treated, you can make a written complaint to the:

Victorian WorkCover Authority
222 Exhibition Street
Melbourne 3000;
OR the Authorised Insurer;
OR the Health Services Commissioner at:
Level 30, 570 Bourke Street
Melbourne 3000

Consult your union and advise it of the problems you have suffered.

Can I sue?

Injury on or after 20 October 1999:
Your right to sue for injuries suffered on or after 20 October 1999 has been restored. You can now recover damages for economic loss and pain and suffering, or for pain and suffering only, depending on the circumstances of the injury. Your right to sue, however, is dependent upon your suffering from a 'serious injury' unless you were injured by a third party and the injury occurred outside of your workplace.

'Serious Injury'

Before you can sue your employer or another party for damages due to a workplace injury, you must firstly be found to suffer a 'serious' injury. A 'serious' injury is an injury that produces either a:

1. 30% or more whole-person impairment based on the 4th Edition, American Medical Association Guide to the Evaluation of Permanent Impairment ; or

2. permanent serious impairment or loss of a body function; or

3. permanent serious disfigurement; or

4. permanent severe mental or permanent severe behavioural disturbance or disorder; or

5. loss of a foetus.

If you are claiming damages for loss of earning capacity, then you will also need to prove that you suffer a 40% loss of earning capacity. You will need to prove that your capacity to earn has been reduced by at least 40% and you have made all reasonable attempts to participate in rehabilitation and retraining.
If you are claiming pain and suffering damages only, then the Court will look broadly at all factors surrounding the injury, including the effect of the injury on your ability to work, your ability to earn, your lifestyle, etc.
Generally you have six years from the date of the injury in which to bring a negligence claim.
If you have a claim and can sue your employer, then you can claim up to:

• $823,680.00 for loss of earnings;

• $372,700.00 for pain and suffering.

If you believe your claim is due to your employer or some other party's fault, then you should seek advice from Maurice Blackburn Cashman immediately.

Injury on or after 12 November 1997 and before 20 October 1999.
Unfortunately, you are unable to sue if you were injured between 12 November 1997 and 20 October 1999 for a work-related injury. In these circumstances, your entitlement to compensation in the form of a lump sum is restricted to a claim for non-economic loss (impairment benefits).

Third Party claims

You can also sue a third party - that is, a party other than your employer - for damages where:

1. your employer is not a party to the action;

2. the injury occurs whilst you are temporarily absent from your place of employment during any authorised recess (e.g. morning tea, afternoon tea); or

3. you are travelling for the purposes of your employment; or

4. you are attending a school or training course for the purpose of your employment; or

5. you are obtaining a medical certificate or treatment.

In these circumstances, it is not necessary to show that you suffer a 'serious' injury; it is sufficient to establish that you have suffered an injury due to the negligence of the third party.
If you believe you may have such a claim, you should contact Maurice Blackburn Cashman for advice.

Lump sum claims

You can claim a lump sum for permanent impairment.
Generally, a claim cannot be made within 12 months of the injury(s) (other than industrial deafness), and not before the injury stabilises.
You will be required to attend an independent assessment arranged by the Victorian WorkCover Authority or the Authorised Insurer. This assessment will assess your degree of permanent impairment and entitlement to a lump sum as well as your impairment for common law purposes.
It is important that all injuries are included in the claim as only the injuries specified in the claim will be included in the assessment.
If you are assessed as having a 10% or more whole person impairment (30% or more in the case of psychiatric illness), you will be entitled to a lump sum payment.
Once you have been assessed, you will be notified of your entitlement and will have to elect to either receive the entitlement immediately or pursue your claim to common law damages for pain and suffering. The election is final.

For injuries prior to 12 November 1997.
You can still claim a lump sum for permanent impairment of up to $104,990 and up to $56,400 for pain and suffering.
Claiming for permanent impairment is complicated, and you should see Maurice Blackburn Cashman for assistance.

Death claims

If a worker dies as a result of a work-related injury, then the dependants of the worker, regardless of the date of injury, are able to claim compensation.
A lump sum of up to $190,000 plus a pension will be payable.
A worker may die as a result of either a traumatic incident in the course of employment or as a result of the long-standing effects of injury or injuries in the course of employment. This can include heart attacks, strokes, cancers, asthmas or suicides.
If you believe a worker's death has in any way been related to the worker's employment, then you should contact Maurice Blackburn Cashman for advice.
In addition to the statutory benefits available, the dependents of a worker, regardless of the date of the worker's death, are able to bring a claim of negligence should the worker's death have been caused as a result of fault on behalf of either the employer or somebody else. Potential damages of up to $543,380 are available.
Dependents can include spouse, children, members of family or any other person who may in part have been dependent on the earnings of the deceased.